S v Shaik and Others (CCT 86/06) [2007] ZACC 19; 2008 (2) SA 208 (CC); 2007 (12) BCLR 1360 (CC); 2008 (1) SACR 1 (CC) (2 October 2007)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2007
>>
[2007] ZACC 19
|

|

S v Shaik and Others (CCT 86/06) [2007] ZACC 19; 2008 (2) SA 208 (CC); 2007 (12) BCLR 1360 (CC); 2008 (1) SACR 1 (CC) (2 October 2007)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 86/06
SCHABIR SHAIK                                                                                            Â
First
Applicant
NKOBI HOLDINGS (PTY) LTD                                                               Â
Second
Applicant
NKOBI INVESTMENTS (PTY) LTD                                                            Â
Third
Applicant
KOBIFIN (PTY) LTD                                                                                   Â
Fourth
Applicant
KOBITEC (PTY) LTD                                                                                     Â
Fifth
Applicant
PROCONSULT (PTY) LTD                                                                           Â
Sixth
Applicant
PROCON AFRICA (PTY) LTD                                                                 Â
Seventh
Applicant
KOBITEC TRANSPORT SYSTEMS (PTY) LTD                                         Eighth
Applicant
CLEGTON (PTY) LTD                                                                                  Â
Ninth
Applicant
FLORYN INVESTMENTS (PTY) LTD                                                        Â
Tenth
Applicant
CHARTLEY INVESTMENTS (PTY) LTD                                                Eleventh

Applicant
versus
THE STATE                                                                                                           Â
Respondent
Heard on         :           23-24 May 2007
Decided on     :           2 October 2007
JUDGMENT
THE COURT:
Introduction
[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 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 sentence in terms of section 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 confiscation orders against certain of the property of the
applicants
that was considered to be the proceeds of unlawful activity in terms
of section 18 of the Prevention of Organised Crime Act (POCA).
[5]
[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 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 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 down for oral hearing.
[7]
  The Supreme Court of Appeal gave judgment on 6 November 2006 in
which it dismissed all of the applications for leave 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 section 1(1)(a) of the
Corruption Act 94 of 1992.
[9]
Â
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.Â
At the time the payments were made Mr Zuma was, from October 1995 to mid-1999,

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 off in certain accounting records of the
corporate
applicants.  Finally, the third count was also one of contravening
section 1(1)(a)(i) of the Corruption Act and related to a specific
payment to
Mr Zuma.  The first alternative charge to count three was of money laundering
in contravention of sections 4(a) and
(b) of POCA.
[10]
  The High Court
held
that Mr Shaik had conspired 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 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
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 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]
[8]
The application before us is in two parts.  The
first, which is directed 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.Â
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”.
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 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 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 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 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.  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
[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 for the late filing of the application for leave to
appeal;
[13]
(b)
to amend the notice of motion;
[14]
(c)
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]
and
(g)
to condone the late filing of supplementary written argument.
[19]
[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 applicant’s
continued non-compliance with
this Court’s Rules and directions had created a
“labyrinthine morass” of papers and had as a result caused them prejudice.Â
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 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 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
[15]
Â
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]
and if it
is in the interests of justice to grant leave to appeal.
[21]
Â
Whether 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]
Â
With regard to the prospects of success, the Court must have regard to and make
an evaluation of the evidence which is before
it.  In this regard, it is
appropriate to consider the new evidence which the applicants sought to
introduce to supplement that
which was before both the High Court and the
Supreme Court of Appeal.  It is to that matter that we now turn.
Appli
cation to admit new evidence
[16]
In an application lodged on 1 February 2007, the
applicants seek to introduce new evidence before this Court.  The evidence is contained

in bundles marked A and B.  Thereafter the applicants sought to amend the
application so as to introduce part D to their supplementary
founding
affidavit.  The applicants submitted that the documents sought to be introduced
are necessary to support their primary
contention that their trial before the
High Court was not fair.  The grounds for unfairness on which the applicants
rely are firstly
the non-joinder of Mr Zuma, Thint and Mr Thétard as co-accused
with the applicants and allegations of prosecutorial misconduct
on the part of Mr
Downer, who led the prosecution on behalf of the State.
The law regarding the admission of
new evidence on appeal
[17]
In this application to introduce further
evidence, the applicants rely on rules 30 and 31 of the Rules of this Court.Â
Rule 30
incorporates, amongst other sections, section 22 of the Supreme Court
Act
[23]
and provides:
“
Application of certain sections of the
Supreme Court Act, 1959 (Act No. 59 of 1959)
The following sections of the Supreme Court
Act . . . shall apply, with such modifications as may be necessary, to
proceedings of
and before the Court as if they were rules of their court.
. . .
22         Powers of court on hearing of appeals”.
[18]
Rule 31 provides:
“
Documents lodged to canvass factual
material
(1) Any party to any proceedings before the
Court and an
amicus curiae
properly admitted by the Court in any
proceedings shall be entitled, in documents lodged with the Registrar in terms
of these rules,
to canvass factual material that is relevant to the
determination of the issues before the Court and that does not specifically

appear on the record: Provided that such facts
―
(a)   are common cause or otherwise incontrovertible; or
(b)   are of an official, scientific, technical or statistical
nature capable of easy verification.
(2) All other parties shall be entitled,
within the time allowed by these rules for responding to such document, to
admit, deny,
controvert or elaborate upon such facts to the extent necessary
and appropriate for a proper decision by the Court.”
[19]
It will be convenient to deal first with the
applications made under Rule 31.  In
Prince v President, Cape Law Society, and Others
[24]
this
Court found that if the evidence sought to be adduced under Rule 31
[25]
is not incontrovertible then it is inadmissible.
[26]
  This approach was
confirmed in
Rail Commuters
[27]
where this Court held that the evidence sought to be introduced was not
admissible since it was “all put in issue by the respondents
. . . [and] therefore
fall[s] to be excluded on that basis alone.”
[28]
Â
In
essence, Rule 31 will find no application where facts sought to be canvassed
are irrelevant or genuinely disputed, in other words,
where they are not
incontrovertible.
[29]
[20]
The second route by which new evidence can be
adduced is provided by Rule 30 which, as already stated, incorporates section
22 of
the Supreme Court Act.  That section deals with the powers of the court
on hearing of appeals.  Although appeal courts have a
discretion
[30]
under section 22, leave to
adduce further evidence is ordinarily granted only where “special grounds
exist, [or where] there
will be no prejudice to the other side and further
evidence is necessary in order to do justice between the parties.”
[31]
Â
(Footnote omitted.)
[21]
Section 22 has been interpreted as allowing for
the admission of new evidence in appeal cases only in exceptional circumstances.
[32]
  In the words of
O’Regan J in
Rail Commuters
:
[33]
“The Court should exercise the powers
conferred by section 22 ‘sparingly’ and further evidence on appeal (which does
not fall
within the terms of Rule 31) should only be admitted in exceptional
circumstances.  Such evidence must be weighty, material and
to be believed.  In
addition, whether there is a reasonable explanation for its late filing is an
important factor.  The existence
of a substantial dispute of fact in relation
to it will militate against its being admitted.”
[34]
[22]
In
Prophet
[35]
this Court held that—
“there are two routes for the admission of
late evidence on appeal in this Court.  The first is Rule 31 of the Rules of
this
Court which permits parties to adduce relevant material that is common
cause or otherwise incontrovertible or is of an official,
scientific, technical
or statistical nature and capable of easy verification.  The second is in terms
of section 22 of the Supreme
Court Act, which is incorporated into the Rules of
this Court by Rule 30.  This Court has considered the circumstances in which

evidence may be tendered in terms of section 22 on several occasions and
concluded that it may only be done in exceptional circumstances
where the
evidence sought to be submitted is ‘weighty, material and to be believed’ and
there is a reasonable explanation for
the late filing of the evidence.”
[36]
 (Footnotes omitted.)
[23]
The approach to be adopted in an application to
introduce new evidence is thus clear.  The evidence sought to be admitted on
appeal
must meet the requirements of Rules 31 or 30.  The introduction of
evidence referred to in the said bundles will accordingly be
determined on the
basis of the above principles.
The evidence contained in Bundle A
[24]
Bundle A contains the papers filed in the
matter of
S v Zuma
[37]
(Zuma proceedings)
and
comprises 33 volumes with nearly 3 000 pages.  The bundle includes the
application by the State for a postponement in the Zuma
proceedings and contains
a number of affidavits connected with that application.  The affidavits included
those deposed to by
Mr Downer;
[38]
Mr Du Plooy;
[39]
Mr Zuma; Mr Moynot;
[40]
Ms Parsee;
[41]
Mr McCarthy
[42]
and affidavits of the counsel of certain parties.  These papers did not form
part of the record before the trial court or the
Supreme Court of Appeal, nor
did the applicants apply to have them introduced in their appeal in that Court
in terms of section
316 of the Criminal Procedure Act (CPA).
[43]
[25]
The applicants contend that the information
contained in the affidavits of Mr Du Plooy and of Mr McCarthy is of direct
relevance
to the constitutional challenge based on the non-joinder of Mr Zuma
and Thint in their criminal trial and to claims based on Mr
Downer’s alleged prosecutorial
misconduct.  This evidence is said to contain facts which show that the State
did not have a
sufficiently strong case against Mr Zuma and had concluded an
agreement with Thint in terms of which that company would not be prosecuted

with the applicants.
[26]
The affidavit of Mr Du Plooy sets out the
reasons for the postponement sought by the State in the Zuma proceedings.  The
affidavit
relies on two factors that arose out of the Shaik criminal
proceedings in the High Court.  The first is that Mr Shaik testified
that the
payments made to Mr Zuma, which the State believed to have ended on 30
September 2002, actually continued beyond that
date and were, at the material
time relevant to the deposition, still continuing.  The second factor is the
admission by Mr Shaik
that a meeting took place on 11 March 2000, as reflected
in the encrypted fax, between himself, Mr Zuma and Mr Thétard.  This
meeting
has been denied by Mr Zuma in his papers.  The affidavit also sets out the
background to the withdrawal of charges against
Thint.  The applicants suggest
that insight into the agreement entered into between Thint and the NDPP is
vital to the argument
regarding the non-joinder issue.
[27]
Mr McCarthy’s affidavit, read with that of Mr
Ngcuka, is used to respond to the application by Mr Zuma for a permanent stay
of
prosecution.  It gives information on the negotiations and the agreement
entered into with Thint.
[44]
 It also describes certain aspects of the applicants’ trial in the High Court, the
re-appraisal of the admissible evidence against
Mr Zuma and how that led to the
decision that he should be prosecuted.
[45]
Â
It is on the basis of this information, that the applicants argue, that their
trial constituted a “dry run” for the subsequent
trial against Mr Zuma and that
the State used their case to test the prospects of success against Mr Zuma.Â
The applicants contend
that the separate prosecutions resulted in a mistrial
and a violation of their constitutional rights to a fair trial and equality

because a different standard to prosecute them applied to that in the
prosecution of Mr Zuma.
[28]
The applicants further seek to adduce the
evidence contained in the affidavit of Mr Zuma and that filed on behalf of
Thint in the
Zuma proceedings because they claimed it would exculpate them in
the corruption charges and show unconstitutional conduct on the
part of the prosecution.
 They attempt to demonstrate that they could not reasonably be expected to have
raised the new facts
before the trial court or the Supreme Court of Appeal
because the affidavits were only filed mere months prior to the hearing of
the
criminal appeal before the Supreme Court of Appeal
[46]
and their legal
representatives did not have sufficient time to thoroughly examine the papers
filed in the Zuma proceedings and
make appropriate representations before that
Court.
[29]
The applicants conceded at the hearing that it
was not the decision of the National Prosecuting Authority (NPA) to prosecute
them
separately from Mr Zuma and Thint that rendered the trial unfair, but the
effects of the decision.  Accordingly, to the extent
that the affidavits of Mr
Du Plooy and Mr McCarthy purport to give reasons for the failure to prosecute
Mr Zuma jointly with the
applicants, they have no relevance to the issues
before us.
[30]
We may add also that the facts upon which the
applicants rely are not only strenuously disputed by the State but the
applicants
themselves also seek to dispute the veracity of some of the evidence
they applied to tender – such as the NDPP’s reason for
declining to prosecute
Mr Zuma.  Since the evidence the applicants are trying to adduce is irrelevant
and controvertible, neither
the requirements of rule 30 nor of rule 31 have
been met.  Accordingly, the application to admit new evidence contained in
Bundle
A must fail.
The evidence in Bundle B
[31]
Bundle B comprises eight volumes and contains
two classes of documents.  In the first category are documents which are
already
in the public domain.  They include High Court judgments and exhibits
which were admitted in the trial court.  These documents
are part of the trial
record and, to the extent that it is sought to have them admitted as part of
the appeal record, they are
superfluous and therefore irrelevant.  The second
class of documents, eight in number, did not form part of the record before the

trial court or the Supreme Court of Appeal.  They include: (i) a document
containing a brief chronology of events; (ii) some newspaper
articles; (iii) a
media statement by the Chief Justice; (iv) a media statement by the Registrar
of the Supreme Court of Appeal;
(v) a judgment of Msimang J in the Zuma
proceedings; (vi) a National Prosecuting Authority of South Africa Policy
Manual (Policy
Manual); (vii) a judgment of Hurt J in the Durban High Court;
[47]
and (viii) a letter from the
applicants’ attorneys addressed to the NDPP dated 22 November 2006.
[32]
The media statements and newspaper articles are
sought to be introduced to demonstrate the contention by the applicants that
the
Supreme Court of Appeal was influenced by the media, and not only by the
evidence before it when, in its judgment in the POCA proceedings,
it
incorrectly attributed the phrase “a generally corrupt relationship” to the
High Court.  It is true that this evidence
could not be brought earlier as it
only became available upon the delivery of the judgment of the Supreme Court of
Appeal.  This
evidence is, however, neither relevant nor material to the issues
before us as the applicants expressly disavowed any reliance on
this matter in
their argument in the oral hearing.  The application to admit this evidence
must accordingly be refused.
[33]
The Policy Manual was published under the
authority of the NPA in October 1999 and sets out the prosecution policy, the
policy directives
and the code of conduct by which prosecutors are bound.  The
introduction of the manual would, it was claimed, assist the Court
in assessing
the lawfulness of the involvement of Mr Downer in the criminal trial.  The
policy manual is a public government document
and leave of this Court to
introduce the document as evidence is not required.  Furthermore, the fact that
the manual is an internal
policy document which constitutes mere guidelines means
it would have little weight in this application.
[34]
The High Court judgments sought to be admitted
do not require formal leave for admission into evidence.  The application is
only
necessary in so far as it attempts to introduce as evidence the factual
material in the judgments.  The relevance of facts in the
said judgments has
not been demonstrated.  Hurt J’s judgment related to the unlawfulness of search
and seizure operations conducted
in relation to Mr Zuma, Thint and their legal
representatives.  The searches involved in these operations are unrelated to
the
searches on the premises of the applicants and their legal representatives,
except in so far as the material seized may tend to
show a link between Mr Zuma
and the applicants.  Material relevance of the evidence in the judgment of Hurt
J to the constitutional
challenges in this case has not been shown.  The
judgment of Msimang J focused on the postponement of the hearing in the Zuma
proceedings and the manner in which the conduct of the prosecution contributed
to the postponement.  Again, its relevance to any
of the constitutional
challenges raised in this application has not been shown.  The application to
introduce the evidence contained
in Bundle B must therefore be refused.
The introduction of part D of the applicants’
supplementary founding affidavit
[35]
Part D to the applicants’ supplementary
affidavit deals with documents involved in separate charges instituted against Mr
Shaik.Â
They were apparently found as a result of a search and seizure operation
conducted at his premises on 9 October 2001.  The documents
include: an
annexure to the charge sheet
[48]
;
correspondence between the applicants’ attorney and Mr Downer regarding the
first applicant’s challenge to the search warrant
issued to the NPA; a copy of
heads of argument in the Magistrates’ Court; and a copy of the judgment in the
said proceedings.
[36]
The applicants seek to introduce this evidence
to substantiate the appeal against the search and seizure operations that took
place
on 9 October 2001.  They contend that the evidence is important in
relation to the unlawfulness of the search and seizure operations.Â
It seems
that the applicants had at some stage contemplated a challenge to the
lawfulness of the search before the trial court
but subsequently chose to
formally accept the legality of the searches and the admissibility of a number
of documents seized during
the searches.  Once again, this challenge was
abandoned at the hearing and the evidence supporting it is therefore immaterial
and should not be admitted under rule 31 or 31.
[37]
The factual material canvassed by the evidence
sought to be introduced in this Court will not have any bearing on the
challenges
relating to the fairness of the trial or any other constitutional
challenge raised by the applicants.  In the circumstances, the
application for
the admission of the new evidence contained in the Bundles marked A and B and
part D of the supplementary affidavit
must be refused.
[38]
Before embarking on an enquiry whether the
applicants have reasonable prospects of success on the question whether the
trial was
unfair, it will be convenient to deal with the failure by the
applicants to raise the issues of unfairness timeously, in particular
before
the High Court or the Supreme Court of Appeal.
The failure to raise issues in the
High Court or the Supreme Court of Appeal
[39]
The applicants did not raise the two grounds on
which they rely to show the unfairness of the trial at any stage before
bringing
the matter to this Court.  They request that their failure to do so be
condoned on two grounds.  First they claim that the information
necessary for
them to make the complaints was not available to them.  And second, they argue
that this Court should not let technical
or procedural rules permit a failure
of justice to occur.
[40]
We do not agree that the applicants did not have
the information necessary to enable them to raise their constitutional
complaints
in the High Court and in the Supreme Court of Appeal.  They were
aware that Mr Zuma, Thint and Mr Thétard were not going to be
tried with them.Â
Mr Zuma had declined their invitation to testify on their behalf and Mr Thétard
was overseas.  The available
information was therefore sufficient for them to
foresee any potential prejudice there might have been to their trial and they
should have been in a position to take appropriate action.  The same is true of
the issue of prosecutorial misconduct.  All the
necessary information was
contained in an affidavit deposed to by Mr Downer which was formally admitted
by the applicants.  The
Court is satisfied that the applicants had knowledge of
the extent of the prosecutor’s involvement in the case and chose not to

challenge it earlier.
[41]
Turning to the second ground, while it is true
that the Constitution does not envisage a legal system that places form before
substance,
procedural rules are there to ensure the fair conduct of a trial by
all the parties.  There may well be cases where strict adherence
to formal
rules may lead to an unjust result; that will depend on the facts of each
case.  The ultimate question is whether it
is in the interests of justice to
condone dilatory conduct and, in a given case, entertain a constitutional
complaint.  In determining
whether, in this case, it is in the interests of
justice to deal with the issue raised, it is necessary to consider whether or
not the applicants have reasonable prospects of success on the issue of the
fairness of the trial.  It is to that question that
we now turn.
The fairness of
the criminal trial
[42]
The applicants contend that their criminal trial
was unfair.  As section 35(3) of the Constitution guarantees for every accused

the right to a fair trial, the applicants’ complaint clearly raises a
constitutional issue.  As earlier stated,
[49]
the applicants base their contention on two legs, the first being the failure
by the State to join Mr Zuma and/or Thint and/or
Mr Thétard as co-accused with
the applicants.  The second leg of the fair trial challenge concerned their
allegation that Mr
Downer’s conduct amounted to prosecutorial misconduct.  It
was contended that the two grounds together rendered the trial unfair.
[43]
It will be convenient to restate the principles
employed by a court in determining the fairness of a trial.  The applicants
stress
that they place their reliance on the general right to a fair trial,
which, as this Court has held,
[50]
extends beyond those specific
rights enumerated in subsections 35(3)(a)-(o) of the Constitution.
[51]
 The right to a fair trial
requires a substantive, rather than a formal or textual approach.
[52]
 It is clear also that
fairness is not a one-way street conferring an unlimited right on an accused to
demand the most favourable
possible treatment.  A fair trial also requires—
“fairness to the public as represented by
the State.  It has to instil confidence in the criminal justice system with the
public,
including those close to the accused, as well as those distressed by
the audacity and horror of crime.”
[53]
[44]
Our courts have recognised that some
irregularities result in a failure of justice, in the words of section 322(1)
of the CPA.  A
failure of justice must be understood within the context of
section 35(3) of the Constitution as an unfair trial.
[54]
 However, not every
irregularity has this result.
[55]
 According to the applicants, the failure to charge Mr Zuma, Thint or Mr
Thétard without more resulted in the trial being unfair,
and they need not show
that they were actually prejudiced by the failure.  They also argue that the
public interest necessitated
a joint trial.  The question is therefore firstly,
whether an irregularity did indeed occur, and then, if so, whether it was of

the kind to render the trial unfair.
(a) Non-joinder of Mr Zuma
[45]
Counsel for the applicants argued that since the
trial concerned corruption, which is a reciprocal crime, a joint trial should
have
been held, unless there were good reasons not to.  Amplifying on their
argument, the applicants contend that if Mr Zuma, Thint
and Mr Thétard had been
co-accused, they would have found it in their interest to testify and hence
provide evidence that would
have exculpated both themselves and the
applicants.  Since they were not facing trial, there was no incentive for them
to give
evidence in the applicants’ trial; furthermore, they ran the risk of
having their testimony used against them in future investigations
or a future
trial against them.  The applicants point out that Mr Zuma in fact refused the
first applicant’s request to testify
on his behalf.  If Mr Zuma had been
subpoenaed, as he could have been, he would have testified under compulsion;
such a witness
was unlikely to be helpful.
[46]
In
S v Shuma and Another
,
[56]
in the context of the
interests of society, the following was stated:
“It is in the interests of society as well
as of justice that alleged perpetrators of the same crimes be tried jointly.  The
alternative, namely separate trials as a matter of course, will be cumbersome
and lead to huge wastage of State resources.  It
will, too, inevitably bring
about delay, which will be to the benefit of no-one – least of all the accused.
. . . [T]here is
much to be said for the view that it is in the interests of
justice that accused should be tried together to enable the Court to
have all
the evidence before it, before deciding the disputed question as to who is the
guilty person.  These are cogent reasons
for the holding of joint trials.”
[57]
[47]
The fact that there might often be cogent
reasons for the holding of joint trials, does not of course mean that a
specific trial
would be unfair because other possible perpetrators are not
charged together with an accused.  The ultimate question is whether
a
particular trial was unfair; this was conceded by counsel on behalf of the
applicants.
[48]
Counsel for the applicants argued that Mr Zuma
might well have given evidence to the advantage of the applicants.  He could
for
example have explained the very unique and wholly innocent relationship
between himself and Mr Shaik.  All of this is highly speculative,
however.  If
Mr Zuma were charged with the applicants, he might have requested a separation
of trials, as co-accused often do.
 Furthermore, he might have exercised his
right to remain silent (guaranteed in section 35(3)(h) of the Constitution) and
not
testified at all.  Had he testified, his evidence might have attempted to
lay blame at the applicants’ door, rather than to exonerate
them.  It must be
remembered that the applicants could subpoena and compel Mr Zuma to testify in
their trial, which they would
not have been able to do if he were a co-accused.
 There is thus no indication that the applicants suffered any prejudice
whatsoever
as a result of the failure to charge Mr Zuma, Thint or Mr Thétard,
or even that they would have gained any advantage from their
presence as
co-accused.
[49]
While it is possible that a particular accused
is disadvantaged by the fact that someone else is not charged in the same
trial,
this does not render the trial unfair.  In
Xolo and Others v
Attorney-General of the Transvaal
[58]
Williams AJ stated:
“I fully appreciate that it is possible
that separate trials may redound to the disadvantage of the accused both
financially and
in the sense that they may be exposed to a greater danger of
conviction in the second trial; I can, however, see no danger to them
of their
being prejudiced by any unfairness creeping into their trials as a result of
separate trials.”
[59]
[50]
In conclusion, the proposition cannot be upheld that
the failure to charge another party, who may be suspected to be involved in
the
same offence, in the same trial together with an accused amounts to a breach of
any established rules of criminal procedure
and thus to an irregularity of the
kind that would result without more in a failure of justice, render a trial
unfair and require
a conviction to be set aside on appeal.  In the
circumstances of this case in particular, the trial cannot be said to have been

unfair for the reasons advanced by the applicants.  It is not entirely
insignificant that the absence of Mr Zuma and others as
co-accused was not
raised by the applicants in the High Court or Supreme Court of Appeal as a
threat to the fairness of the trial.Â
Whether a court may or should under
different circumstances refuse to proceed with a separate trial of an accused,
need not be
answered conclusively here.
(b) Alleged
prosecutorial misconduct
[51]
The second leg to the applicants’ complaint that
their right to a fair trial was infringed concerns the alleged dual role played

by the prosecutor, Mr Downer, before and during the proceedings in the High
Court and the Supreme Court of Appeal.  It was argued
that Mr Downer had
overstepped the line between prosecutor and investigator by: overseeing the
search and seizure operations in
Mauritius;
[60]
assisting the Mauritian officials to prepare the application to the Supreme
Court of Mauritius; assisting police officials in Mauritius
in the
identification of material documents that should be seized; and conducting
interrogations of employees of the corporate
accused in terms of section 28 of
the NPA Act.  The applicants argue that the conflation of the two roles carried
the inherent
danger of subordinating the prosecutorial duties to the
investigative zeal of securing convictions.  They rely on
Killian v
Immelman, Regional Magistrate Paarl & Others
[61]
as authority for finding a trial unfair based on prosecutorial misconduct.  In
that case, the investigator, who had also interrogated
the accused in terms of section
28 of the NPA Act, took on the role of prosecutor at the commencement of the
trial.
[52]
The State points out that Mr Downer’s role in
the investigation was no more than what is contemplated by the NPA Act.  It
denies
that Mr Downer had crossed the line of authority of investigator during
the search and seizure operations in Mauritius.  At all
relevant times the lead
investigator was Mr Du Plooy.  It was common cause that Mr Downer did not
interview any of the accused
but had questioned certain witnesses in line with
the provisions of section 28 of the NPA Act.
[53]
In order to determine
whether the applicants’ complaint, based on Mr
Downer’s alleged dual roles, has reasonable prospects of success, it is
necessary
to examine the relevant legislative provisions.  The starting point
is the Constitution, which makes provision for the establishment
of the prosecuting
authority in section 179(2) which reads:
“The prosecuting authority has the power to
institute criminal proceedings on behalf of the state, and to carry out any
necessary
functions incidental to instituting criminal proceedings.”
Section 179(4) also makes provision
for the enactment of national legislation that ensures that the prosecuting
authority exercises
its functions “without fear, favour or prejudice.”  This
legislation came in the form of the National Prosecuting Authority
Act.
[62]
[54]
The NPA Act makes provision for the overlapping
of certain functions and envisions the necessity to give prosecutors more
authority
than just to institute cases.  The preamble the NPA Act makes
provision for the establishment of an Investigating Directorate―
“with limited investigative capacity, to
prioritise and to investigate particularly serious criminal or unlawful conduct
committed
in an organised fashion . . . with the object of prosecuting such
offences or unlawful conduct in the most effective manner”.
[55]
Section 7(1)(a) of the NPA Act describes the aim
of the Investigating Directorate as being to―
“(i)       investigate, and to carry out any functions incidental to
investigations;
(ii)        gather, keep and analyse
information; and
(iii)
where appropriate, institute criminal
proceedings and carry out any necessary functions incidental to instituting
criminal proceedings,
Relating to―
(aa)     offences or any criminal or unlawful activities committed
in an organised fashion . . . .”
[56]
This section gives the Investigating Directorate
specific investigative functions.  Section 7(4)(a)(ii) makes provision for
prosecutors
to assist the Directorate.
[63]
Â
It is these provisions that create a framework in which functions of the
investigators and prosecutors will sometimes overlap
and it is within this
context that Mr Downer performed his functions.
[57]
There is no direct challenge to the
constitutionality of the NPA Act.  Therefore, as long as the prosecutor has
acted within her
or his bounds, the trial cannot be said to be unfair.  The
only question therefore is whether Mr Downer exceeded the limits placed
on him
by the Act.
Specific objections made to Mr
Downer’s conduct
[58]
Some of the objections made to Mr Downer’s
conduct were not raised in the papers and only brought to the attention of the
Court
and the respondent in oral argument.
[64]
Â
This places the respondent and the Court in the unwanted position where they
are called on to respond to a case that they did
not prepare to meet or hear.Â
There might be good reason why time should be spent on objections only raised
in oral argument,
but no such reason was shown in this case, and like the rest
of the objections, the applicant knew about the facts that gave rise
to the
objections at the time of the trial in the High Court.  The Court will thus not
take into account any of the objections
that were raised in oral argument for
the first time.  Even if they were to be taken into account, they would not
alter the finding.
The allegation that Mr Downer
oversaw the search and seizure in Mauritius
[59]
Mr Downer’s account of his involvement in the
search and seizure is uncontradicted and was formally admitted by the
applicants
at the trial.  In his affidavit, Mr Downer makes it clear that he
“took no part in the search on the premises”.  Mr Du Plooy’s
affidavit in this
Court also disputes the allegation that Mr Downer oversaw the search and
seizure in Mauritius and states that
they were carried out entirely by and
under the authority and control of the Mauritian officials.  From this it
emerges that Mr
Downer did not take over the functions of the investigators and
kept his distance during the proceedings.
[60]
The applicants assert that one of the ways in
which Mr Downer “oversaw” the search and seizure procedure was by assisting
police
officials in Mauritius in identifying material documents that should be
seized.  Once again the picture drawn by the applicants
is given new light when
looking at Mr Downer’s affidavit:
“Detective Chief Inspector Jugoo
periodically spoke to me as I waited outside and asked me to confirm the
relevance or otherwise
of documentation that was found.  At a stage, I enquired
whether he had found Mr Thétard’s diary for the year 2000 and I suggested
that
he ask Mr Thétard for it.  I regarded the diary as a particularly important
document and it was specifically mentioned in
the application and the order.Â
DCI Jugoo went back inside and returned to me shortly afterwards with the
diary.”
[61]
Mr Downer’s role can at most be regarded as
being one of assistance.  By staying outside and informing the Mauritian
officials
which documents are of importance he created the space for them to do
their job.  The person who oversaw the search and seizure
was DCI Jugoo.  Once
again in compliance with the NPA Act, there was an investigator and a
prosecutor, each staying on their side
of the fence.
Allegation that Mr Downer conducted
section 28 interrogations in terms of the NPA Act
[62]
The applicants give no factual basis for this
averment.  What is relevant is that Mr Downer never interrogated the accused.Â
Furthermore,
he interviewed only the people he was permitted to in terms of the
NPA Act (employees of some of the companies).  As noted above,
section 7(1)(a)
of the Act establishes the Investigating Directorates, and in subsection
7(4)(a)(ii) provision is made that the
Investigating Directorate can be
assisted by prosecutors in its functions.  One of these functions is to conduct
inquiries as
provided for in section 28.  The NPA Act therefore makes provision
for a prosecutor to assist in section 28 inquiries.
[63]
The facts of this case are distinguishable from
Killian
,
[65]
a decision relied upon
by the applicants, where the investigator, who had interrogated the accused in
terms of section 28 of the
NPA Act, took on the role of prosecutor at the
commencement of the trial.  In this case, there is no allegation that any of
the
accused was interrogated by Mr Downer.
The claim that Mr Downer acted
both as detective and investigator
[64]
No evidence has been placed before us in support
of the assertion by the applicants that Mr Downer performed the functions of a
detective and an investigator.  No clear indication has been given of the
examples where Mr Downer overstepped the line between
investigator and
detective.  Furthermore, we have already held that the NPA Act makes specific
provision for an overlap.  There
is nothing before us that indicates that Mr
Downer acted outside this overlap.
Challenge to impartiality
[65]
The applicants argue that Mr Downer did not
adhere to his constitutional duty to remain impartial and to execute his
functions without
fear, favour or prejudice.  They do not however show the
basis or proof of any bias.  What they aver is that Mr Downer, while
wearing
the hat of investigator, came into possession of knowledge that would not be
available to him as prosecutor.
[66]
Additional knowledge and understanding of the
facts does not amount to bias or prejudice.  It is not alleged, for instance,
that
the prosecutor waged a personal vendetta,
[66]
impaired the conduct of the proceedings and the dignity of the court,
[67]
or used the same office as the
assessors.
[68]
Â
In fact, the applicants placed it on record when they opened their case that
they are not attacking the ethics of Mr Downer’s
conduct.
[67]
 Furthermore, it is unclear what the purpose of
an investigator is if not to hand over as much evidence as can be lawfully
obtained
to the prosecutor.  It is in the best interest of all, even that of
the accused, for the prosecutor to have as much evidence available
as possible
in her or his position as truth-seeker.  It is relevant here to note that the
role of the prosecutor is not to ensure
convictions,
[69]
but as Rand J stated in
Boucher
v The Queen
:
[70]
“It cannot be over-emphasized that the
purpose of a criminal prosecution is not to obtain a conviction; it is to lay
before a
jury what the Crown considers to be credible evidence relevant to what
is alleged to be a crime.  Counsel have a duty to see that
all available legal
proof of the facts is presented: it should be done firmly and pressed to its
legitimate strength but it must
also be done fairly.  The role of prosecutor
excludes any notion of winning or losing; his function is a matter of public
duty
than which in civil life there can be none charged with greater personal
responsibility.  It is to be efficiently performed with
an ingrained sense of
dignity, the seriousness and the justness of judicial proceedings.”
[71]
[68]
None of Mr Downer’s actions fell foul of his
role as prosecutor as set out in the NPA Act or the Constitution.  The
applicants’
submissions on the alleged unfairness of the trial, based on the
failure to charge other parties and on the alleged prosecutorial
misconduct,
thus reveal no prospects of a successful appeal.  It would not be in the
interests of justice to grant leave to appeal
and the application for leave has
to be dismissed.
Sentencing
[69]
As stated above, the High Court sentenced Mr
Shaik to an effective 15 years’ imprisonment, this being the minimum sentence
in
terms of the Amendment Act.
[72]
Â
The second to eleventh applicants were sentenced to the payment of fines in
varying amounts.
[73]
Â
As described above,
[74]
the applicants applied first to the High Court and then to the Supreme Court of
Appeal for leave to appeal against the sentences,
with limited success.Â
Ultimately, the Supreme Court of Appeal dismissed all their appeals.
Â
Although all the applicants apply for leave to appeal against their
sentences, their submissions in this Court specifically focus
on the sentence
of 15 years’ imprisonment imposed on Mr Shaik.
[70]
The applicants advance two main contentions in
regard to sentencing.  The first is that the High Court and Supreme Court
of
Appeal failed to consider the socio-economic and personal background of Mr
Shaik.  The second relates to the interpretation and
alleged retrospective
application of minimum sentence legislation.
[71]
The first question is whether a constitutional
issue is raised.  A sentence involving imprisonment is a potentially drastic
infringement
of the right to freedom in section 12(1) of Constitution.
[75]
 Furthermore, any sentencing
process must be part of a criminal trial that is fair in terms of section
35(3).  However, this
Court does not ordinarily hear appeals against sentences,
based on a trial court’s alleged incorrect evaluation of facts.  A
complaint
against the alleged retrospective application of minimum sentence legislation,
on the other hand, clearly raises a constitutional
issue.  Even when a
constitutional issue is indeed raised, it must be in the interests of justice
for this Court to hear the
appeal.  This requires a consideration of the
prospects of success.
[72]
The function of any court adjudicating an appeal
against a sentence must be kept in mind, for it is relevant to whether there
are
prospects of success.  It has been stated repeatedly by courts that an
appeal court would not easily interfere with a sentence
imposed by a trial
court exercising its discretion.  The question is not which sentence the appeal
court would have imposed, but
rather whether the sentence is shockingly
inappropriate, or whether an irregularity or misdirection occurred.
[76]
[73]
Expanding on the alleged failure of the High
Court and the Supreme Court of Appeal to consider the socio-economic context of
discrimination
that prevailed at the time of the commission of the offences,
the applicants claim that this discrimination denied Mr Shaik equal

opportunities and caused him to commit “economic crimes”.  They describe him as
a victim of an unjust and unfair society and
see his sentence as being grossly
disproportionate.  It is argued that if the minimum sentence legislation is
interpreted in the
light of the Constitution, the sentences would be found to
be unjustified.
[77]
[74]
The State’s response to the applicants’ first
contention is that it is obvious from the judgments of both the High Court and

the Supreme Court of Appeal that the first applicant’s personal circumstances
have been considered very carefully.  It is specifically
pointed out that the
Supreme Court of Appeal did have regard to constitutional values and their
impact on sentencing.  The State
points out further that the submission that South Africa’s history of racial discrimination and oppression must be taken into account

when sentencing the applicants was new and had not been raised as a sentencing
consideration in the High Court or the Supreme Court
of Appeal.  On the
contrary, counsel for the applicants had submitted in argument in the Supreme
Court of Appeal that Mr Shaik’s
group of businesses was successful and
prosperous, and had had no need for intervention by Mr Zuma.
[75]
A proper approach to sentencing does of course
require that the historical context of all the relevant circumstances before
the
court be considered.  This is obvious and requires no elaboration from this
Court.  It is however clear that the High Court and
the Supreme Court of Appeal
had due regard to the first applicant’s personal circumstances, with particular
reference being made
to his “struggle credentials”.
[76]
Mr Shaik’s crimes commenced after the dawn of
democracy and continued after legislation had been enacted that furthered the
interests
of parties who had suffered discrimination.
[78]
  Furthermore, the oppressive
discriminatory past of this country cannot be used as an excuse for the
commission of crime, or to
justify a reduction in an otherwise appropriate
sentence, except perhaps under rare and exceptional circumstances.  Mr Shaik
was
in no way compelled or forced to engage in corrupt activities by virtue of
the social context that he found himself in.  He cannot
be said to have been a
“victim” in these offences.  Whereas it is clear that poverty, a lack of
education, or an unhappy childhood,
for example, or years of humiliation and ill-treatment
by one or more persons, could be taken into account as relevant personal

circumstances of an offender, one must never lose sight of the fact that
millions of people who suffered severely under apartheid
have chosen to lead
honest lives and to avoid crime, often against many odds.  Any message by
sentencing courts that the sad and
brutal past of our country is a general
excuse or mitigating factor for crime would degrade the noble efforts of
millions of previously
and presently deprived people to live law-abiding lives under
difficult circumstances.
[77]
Accordingly, we find that it would not be in the
interests of justice for the appeal to be heard on this ground as there are no
prospects of success.
[78]
The applicants’ second contention regarding minimum
sentencing proceeds from the premise that section 51 of the Amendment Act,

which imposes minimum sentences, came into operation on 1 May 1998 and does not
provide for retrospective application of those
provisions.  The High Court held
that the offence of corruption was committed when the first payment was made to
Mr Zuma in January
1997, and the rest of the payments went to the nature,
extent and degree of the corrupt relationship.  On this reasoning, it is
argued
that the offence occurred prior to section 51 coming into force.
[79]
The applicants’ further contentions in this
context are general and go something like this: Mr Shaik’s constitutional
rights
have been violated and constitutional issues are accordingly raised for
several reasons.  Firstly, it is contended that the sentencing
was irregular,
which is a violation of the right to freedom and a fair trial.  Secondly,
section 35(3)(n) of the Constitution
[79]
entitles the first applicant to the benefit of the least severe of prescribed
punishments since the punishment changed after the
date on which the offence
was committed.  Thirdly, the rule of law was violated by the retrospective
application of the Amendment
Act.  Fourthly, there was an erroneous application
of the law.  Finally, there is a perception that justice has not been done
to
the first applicant as regards sentence.
[80]
In response, it was pointed out by the State
that the applicants’ contentions are not only bad in law but contain averments
that
are factually incorrect.  More specifically, the applicability of the
minimum sentence legislation had, according to the State,
been addressed in
argument before the High Court on sentence.  Further, the indictment quite
clearly alleged that count one was
a continuous offence that had been committed
between 1 October 1995 and 30 September 2002.  Furthermore, in the Supreme
Court
of Appeal the applicants conceded that the corruption conviction fell
within the provisions of section 51(2)(a) of the Amendment
Act, as the payments
made during the period 1 May 1998
[80]
to 30 September 2002 amounted to more than the statutory threshold of R500 000.
[81]
It is clear that the charge of corruption
concerned the giving of benefits to Mr Zuma over a period of time that extended
both before
and after commencement of the Amendment Act.
[81]
  The corruption was an ongoing
offence.  The acts of corruption that followed the first cannot be said to have
gone to the nature
and extent of the offence; each act constituted an offence
of corruption and together they resulted in the first charge of corruption.Â
It
is not in dispute that the offences that were committed after the commencement
of the Amendment Act amount to the statutory
threshold of R500 000.  In this
light it is not of material significance that there were acts of corruption committed
prior to
the Amendment Act that are included in the same charge.  If anything,
these other offences provide additional reasons for not invoking
section
51(3)(a) of the Amendment Act.
[82]
Â
There is therefore no logical reason why the minimum sentence legislation
should not apply to the first applicant.  We accordingly
find that the
applicants’ contentions on this ground also bear no prospects of success.
[82]
As far as the fines imposed on the rest of the
applicants are concerned, there is nothing to warrant any interference with the
sentences
imposed.  There is therefore no prospect of success on appeal.  Accordingly,
it is not in the interests of justice for the appeal
on sentence to be heard by
this Court.  The application for leave to appeal against the sentences must be
dismissed.
The POCA proceedings
[83]
The application for leave to appeal against the
confiscation orders raises a constitutional matter in that section 25 of the
Constitution
provides that no one may be arbitrarily deprived of his or her
property.  The issues raised in the application involve the interpretation
of
legislation in conformity with the Constitution and this is always a
constitutional issue.
[83]
Â
This aspect of the appeal was not in dispute, and was acknowledged by the State
as raising a constitutional issue.  The only
issue would therefore be the
question whether it is in the interests of justice for this part of the
application to be granted.
[84]
As indicated above,
[84]
the applicants raise three
issues in relation to the POCA proceedings.  First, they seek to introduce new
facts that had not been
raised before; second, they raise the question whether
Mr Zuma’s intervention was the cause of the acquisition of certain benefits
or
assets and third, they raise a challenge against the decisions of the Supreme
Court of Appeal and the High Court based on considerations
of proportionality
between the offence and the value of the property that was confiscated.
[85]
We have considered the submissions before us and
find that they cannot be said to bear no reasonable prospects of success.  We
therefore deem it to be in the interests of justice for the application for
leave to appeal against the confiscation orders made
by the Supreme Court of
Appeal to be granted.  It is inappropriate at this stage to expand further on
the Court’s approach to
these questions.  The factual background to the
confiscation orders and the reasons for our decision will be furnished in our
judgment following the hearing of the appeal.
Conclusion
[86]
To sum up, we find that the application for
leave to appeal against the applicants’ criminal convictions and the sentences
imposed
must fail.  The application for leave to appeal against the
confiscation orders must succeed.
Order
[87]
The following order is made:
(a)
The application for leave to appeal against the
criminal convictions and sentences is dismissed.
(b)
The application for leave to appeal against the order in terms of
the
Prevention of Organised Crime Act 121 of 1998
is upheld and leave to appeal
is granted.
(c)
Further directions will be issued for the hearing of the appeal.
Langa CJ, Moseneke
DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J, Sachs J, Skweyiya J
and Van der Westhuizen J.
In the Criminal Proceedings
For the Applicants:                                        Advocate M
Brassey SC and Advocate
H Gani instructed by Hassan Parsee & Poovalingham
Attorneys.
For the Respondent:                                      Advocate W Trengove SC, Advocate W Downer
SC, Advocate A Cockrell, Advocate A Breitenbach, Advocate A
Steynberg and Advocate G Baloyi instructed by the State Attorney, Johannesburg.
In the POCA Proceedings
For the Applicants:                                        Advocate N
Singh SC and Advocate
H Gani instructed by Hassan Parsee & Poovalingham
Attorneys.
For the Respondent:                                      Advocate W Trengove SC and Advocate A
Cockrell instructed by the State Attorney, Johannesburg.
[1]
Mr Shaik was sentenced to 15 years imprisonment for the first and
third counts each and three years imprisonment on the second count.Â
The
sentences were ordered to run concurrently resulting in an effective sentence
of 15 years.
[2]
Act 105 of 1997.  The section provides:
“Notwithstanding any other law but subject to
subsections (3) and (6), a regional court or a High Court, including a High
Court
to which a matter has been referred under section 52(1) for sentence,
shall in respect of a person who has been convicted of an
offence referred to
in―
(a)   Part
II of Schedule 2, sentence the person, in the case of―
                                (i)
a first offender, to imprisonment for a period not less than 15
years”.
Part II of Schedule 2, before amendment by the
Prevention and Combating of Corrupt Activities Act 12 of 2004
, provided:
“Any offence relating to exchange control, corruption,
extortion, fraud, forgery, uttering or theft—
(a) involving amounts of more than R500 000,00”.
[3]
All the corporate applicants were found guilty on the first
count (corruption).  The fourth, seventh, ninth and tenth applicants
were
convicted on the second count (fraud), while the remaining corporate applicants
were acquitted.  All the corporate applicants
were acquitted on the main charge
to count three (corruption), but the fourth and fifth applicants were found
guilty of the first
alternative charge of contravening sections 4(a) and (b) of
the Prevention of Organised Crime Act 121 of 1998 (money laundering).
[4]
On count one, the third applicant was sentenced to a fine of R1
million and the second, fourth, fifth and eighth applicants to fines
of R125
000 each.  On the same count, the remaining applicants were sentenced to fines
of R25 000 each, suspended under certain
conditions.  On the second count, the
fourth applicant was sentenced to the payment of a fine of R1.4 million.  The
seventh,
ninth and tenth applicants were sentenced to fines of R33 000 each on
that charge, also suspended under certain conditions.  On
the first alternate
charge to count three, the fourth and fifth applicants were ordered to each pay
fines of R500 000 each.
[5]
Act 121 of 1998.  Section 18 of POCA provides in relevant part:
“(1) Whenever a defendant is
convicted of an offence the court convicting the defendant may, on the application
of the public
prosecutor, enquire into any benefit which the defendant may have
derived from—
(a)   that offence;
(b)   any other offence of which the defendant has been convicted at
the same trial; and
(c)   any criminal activity which the court finds to be sufficiently
related to those offences,
and, if the court finds that the
defendant has so benefited, the court may, in addition to any punishment which
it may impose in
respect of the offence, make an order against the defendant
for the payment to the State of any amount it considers appropriate
and the
court may make any further orders as it may deem fit to ensure the
effectiveness and fairness of that order.
. . . .
(6) A court before which proceedings
under this section are pending, may—
(a)   in considering an application under subsection (1)—
(i)      refer to the evidence and proceedings at the trial;
(ii)     hear such further oral evidence as the court may deem fit;
(iii)    direct the public prosecutor to tender to the court a
statement referred to in section 21(1)(a); and
(iv)    direct
a defendant to tender to the court a statement referred to in subsection (3)(a)
of that section . . . .”             Â
[6]
On count 1, the High Court refused leave to appeal except to
the third applicant to which leave was granted on limited grounds.Â
On count 2
and 3, all the applicants convicted were granted leave to appeal their
convictions on limited grounds, but not their
sentences.
[7]
On
count one, the Supreme Court of Appeal referred the following issues for oral
argument: (a) the third applicant’s leave to
appeal against its conviction to
the extent it was refused by the High Court; (b) the convictions of all the
other applicants;
and (c) the first applicant’s sentence argument.  It granted
leave to appeal against the second to fifth and the eighth applicants’

sentences; and refused leave to appeal against the remaining sentences.  The
Supreme Court of Appeal granted leave to appeal against
all the convictions on
the second count to the extent it was refused by the High Court, but refused leave
for all the sentences.Â
On count three, the Supreme Court of Appeal granted
leave to appeal against the convictions to the extent it was refused by the

High Court; referred leave to appeal against the first applicant’s sentence to
oral argument; and refused leave to appeal against
the remaining sentences.
[8]
The judgment is reported as
S v Shaik and Others
2007
(1) SA 240 (SCA); 2007 (1) SACR 247 (SCA).
[9]
Section 1(1)(a) reads:
“Any person
—
(a)   who
corruptly gives or offers or agrees to give any benefit of whatever nature
which is not legally due, to any person upon
whom
—
(i)      any
power has been conferred or who has been charged with any duty by virtue of any
employment or the holding of any
office or any relationship of agency or any
law, or to anyone else, with the intention to influence the person upon whom
such power
has been conferred or who has been charged with such duty to commit
or omit to do any act in relation to such power or duty; or
(ii)     any power has been
conferred or who has been charged with any duty by virtue of any employment or
the holding of any
office or any relationship of agency or any law and who
committed or omitted to do any act constituting any excess of such power
or any
neglect of such duty, with the intention to reward the person upon whom such
power has been conferred or who has been charged
with such duty because he so
acted”.
[10]
Section 4 provides:
“Any person who knows or ought
reasonably to have known that property is or forms part of the proceeds of
unlawful activities
and–
(a)
enters into any agreement or engages in any
arrangement or transaction with anyone in connection with that property,
whether such
agreement, arrangement or transaction is legally enforceable or
not; or
(b)
performs any other act in connection with such
property, whether it is performed independently or in concert with any other
person,
which has or is likely to have the
effect–
(i)
of concealing or disguising the nature, source,
location, disposition or movement of the said property or the ownership thereof
or any interest which anyone may have in respect thereof; or
(ii)
of enabling or assisting any person who has
committed or commits an offence, whether in the Republic or elsewhere–
(aa)     to avoid prosecution; or
(bb)     to remove or diminish any property acquired directly, or
indirectly, as a result of the commission of an offence,
shall be
guilty of an offence.”
[11]
The Government of the Republic conducted a lucrative arms
acquisition programme with both local and foreign contractors.  The applicants

were particularly involved in the contract for an armaments suite for corvettes
for the South African Navy.
[12]
The directions issued by the Chief Justice on 4 April 2007 stated:
“1. The application for leave to appeal, including the
applications to adduce evidence and amend the notice of motion, is set down
for
hearing on Wednesday 23 May and Thursday 24 May 2007 at 10h00.
. . . .
3. . . . Parties should note that argument should
address only the issue of whether leave to appeal should be granted on any or
all of the grounds raised by the applicants in their application for leave to
appeal.  Should leave to appeal be granted on any
or all of the grounds,
directions shall be issued for the further conduct of the appeal.”
[13]
The application should, in terms of Rule 19(2) of the Rules
of this Court, have been filed by 27 November 2006.  It was only filed
on 15
December 2006.
[14]
The amendment was in response to an objection by the
respondent that the applicants in issuing the notice improperly attempted to

appeal against certain decisions of the Supreme Court of Appeal refusing leave
to appeal, where those appeals should properly be
directed at the High Court’s
decisions.
[15]
This application is dealt with in detail below at paras
16-37.
[16]
The applicants wanted to adduce further evidence in part D
of their supplementary founding affidavit that was not part of the original

application to adduce new evidence.
[17]
In terms of the Chief Justice’s directions, the written
submissions should have been filed by 20 April 2007.  They were only filed
on
24 April 2007.
[18]
On 26 April 2007 the applicants filed supplementary written
argument which raised, for the first time, the issue regarding the application

of the Amendment Act to Mr Shaik’s sentence.
[19]
These submissions were also filed after the deadline of 20
April 2007.
[20]
Section 167(3) of the Constitution provides:
“The Constitutional Court—
(a)           is
the highest court in all constitutional matters;
(b)           may decide only constitutional matters, and issues
connected with decisions on constitutional matters; and
(c)           makes
the final decision whether a matter is a constitutional matter or whether an
issue is connected with
a decision on a constitutional matter.”
[21]
See, for example,
Phillips and Others v National Director
of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC);
2006
(1) SACR 78
(CC) at para 30;
Radio Pretoria v Chairperson, Independent
Communications Authority of South Africa, and Another
[2004] ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 19.
[22]
See
African
Christian Democratic Party v Electoral Commission and Others
[2006] ZACC 1
;
2006 (3) SA
305
(CC);
2006 (5) BCLR 579
(CC) at paras 17-18;
S v Boesak
[2000] ZACC 25
;
2001
(1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para 12;
Brummer v Gorfil Brothers
Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3;
S v Dlamini; S v Dladla and Others; S v Joubert; S v
Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) at para 35;
Fraser
v Naude and Others
1999 (1) SA 1
(CC);
1998 (11) BCLR 1357
(CC) at para 7;
Member
of the Executive Council for Development Planning and Local Government, Gauteng
v Democratic Party and Others
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR 855
(CC)
at para 32.
[23]
Section 22 provides:
“
Powers of court on hearing of appeals.―
The
appellate division or a provincial division, or a local division having appeal
jurisdiction, shall have power
―
(a)     on
the hearing of an appeal to receive further evidence, either orally or by
deposition before a person appointed by
such division, or to remit the case to
the court of first instance, or the court whose judgment is the subject of the
appeal, for
further hearing, with such instructions as regards the taking of
further evidence or otherwise as to the division concerned seems
necessary; and
(b)     to
confirm, amend or set aside the judgment or order which is the subject of the
appeal and to give any judgment or
make any order which the circumstances may
require.”
[24]
2002 (2) SA 794 (CC); 2002 (3) BCLR 231 (CC).
[25]
See the discussion of the application of this rule in
Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at paras 37-38 and
S
v Lawrence; S v Negal; S v Solberg
1997 (4) SA 1176
(CC);
1997 (10) BCLR
1348
(CC) at paras 22-23.
[26]
See
Prince
II
above n 24 at para 10 where Ngcobo J enunciated
this principle as follows:
“
The Rule has no application where the facts sought to
be canvassed are disputed.  A dispute as to facts may, and if genuine usually

will, demonstrate that the facts are not ‘incontrovertible’ or ‘capable of easy
verification’.  If that be the case, the
dispute will in effect render the
material inadmissible.  Ultimately, the admissibility depends on the nature and
substance of
the dispute.”  (Footnote omitted.)
[27]
See
Rail Commuters
above n
25.
[28]
Id at para 38.
[29]
See
In re Certain
Amicus Curiae
Applications:
Minister of Health and Others v Treatment Action Campaign and Others
2002
(5) SA 713
(CC);
2002 (10) BCLR 1023
(CC) at para 8.  See also
Mabaso v Law
Society, Northern Provinces and Another
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR
129
(CC) at para 45.
[30]
See
Van Eeden v Van Eeden
1999 (2) SA 448
(C) at
453A-B.
[31]
Prince v President, Cape Law Society and Others
[2000] ZACC 28
;
2001 (2) SA
388
(CC);
2001 (2) BCLR 133
(CC)
at para 21.
Â
See also
Rail
Commuters
above n 3 at paras 42-43.
[32]
See
S v Lawrence
above n 25 at
para 24;
Rail Commuters
above n 25 at para 43;
S v Louw
[1990] ZASCA 43
;
1990 (3)
SA 116
(A) at 123H.
[33]
Above n 25.
[34]
Id at
para 43.
[35]
Prophet v National Director of Public Prosecutions
2006 (2)
SACR 525 (CC);
2007 (2) BCLR 140 (CC).
[36]
Id at para 33.
[37]
S v Zuma
and Others
CC358/05, 20 September
2006, unreported.  This case entailed an application in the Natal Provincial
Division by the State for postponement
of the prosecution of Mr Zuma and Thint
and their counter-application for a stay of prosecution.
[38]
The lead prosecutor in the
Shaik proceedings.
[39]
The Senior Special Investigator for the Directorate of Special
Operations in the Shaik and Zuma proceedings.
[40]
The Managing Director of Thint Holdings (Southern Africa) (Pty) Ltd
(accused two in the Zuma proceedings) and a Director of Thint
(Pty) Ltd
(accused three in the Zuma proceedings).
[41]
Attorney of record to Mr Shaik.
[42]
A Deputy National Director of Public Prosecutions and Head of the
Directorate of Special Operations of the National Prosecuting
Authority.
[43]
Act 51 of 1977.  Sections 316(5) and (6) provide that the evidence
sought to be adduced on appeal may be received if it could reasonably
lead to a
different verdict or sentence.
[44]
The applicants allege that had they been aware of the
agreement with Thint, they could have evaluated whether their rights stood
to
be prejudiced in any material respect and whether the conduct of the
prosecution was unlawful.
[45]
Also allegedly important in this regard is the affidavit of
the current head of the National Director of Public Prosecutions, Mr
Pikoli,
where he allegedly purports to justify his reversal of his predecessor’s
decision (Mr Ngcuka) not to prosecute Mr Zuma.
The applicants submit that these
explanations cannot reasonably be true, showing further that the decision not
to prosecute Mr
Zuma was allegedly unconstitutional.
[46]
Argument in the Zuma trial was heard on 5 September 2006 and
judgment was delivered on 20 September 2006, while the hearing of the
Shaik
appeal in the SCA took place on 25-27 September 2006.
[47]
2006 (1) SACR 468 (D).
[48]
This change to the charge sheet had taken place when the first
applicant was first brought before the Durban Regional Court on various
charges
in relation to the documents obtained during the search and seizure operations.
[49]
See above p
ara 9.
[50]
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 16.  See also
S v Jaipal
[2005] ZACC 1
;
2005 (4) SA 581
(CC);
2005 (5)
BCLR 423
(CC)
at para 27.
[51]
Section
35(3) reads:
“(3) Every accused person has a right
to a fair trial, which includes the right—
(a)     to be informed of the charge with sufficient detail to
answer it;
(b)     to have adequate time and facilities to prepare a defence;
(c)     to a public trial before an ordinary court;
(d)     to have their trial begin and conclude without unreasonable
delay;
(e)     to be present when being tried;
(f)      to choose, and be represented by, a legal practitioner, and
to be informed of this right promptly;
(g)     to have a legal practitioner assigned to the accused person
by the State and at State expense, if substantial injustice
would otherwise
result, and to be informed of this right promptly;
(h)     to be presumed innocent, to remain silent, and not to
testify during the proceedings;
(i)      to adduce and challenge evidence;
(j)      not to be compelled to give self-incriminating evidence;
(k)     to be tried in a language that the accused person
understands or, if that is not practicable, to have the proceedings
interpreted
in that language;
(l)      not to be convicted for an act or omission that was not an
offence under either national or international law at the
time it was committed
or omitted;
(m)    not to be tried for an offence in respect of an act or
omission for which that person has previously been either acquitted
or
convicted;
(n)     to the benefit of the least severe of the prescribed
punishments if the prescribed punishment for the offence has been
changed
between the time that the offence was committed and the time of sentencing; and
(o)     of
appeal to, or review by, a higher court.”
[52]
Zuma
above n 50 at para 16.  See also
Jaipal
above n 50
at paras 27-28.
[53]
Jaipal
above n 50 at para 29.  See also
S v Shuma
and Another
1994 (4) SA 583
(E)
at 586I-J;
Shikunga
2000 (1) SA 616
(NmS) at 629H;
1997 (9) BCLR 1321
(NmS) at 1333A-B.
[54]
Jaipal
above n 50 at para 39.
[55]
Id at
paras 44 and
51
[56]
Above n 53.
[57]
Id at 586J-587C.  See also
R v Nzuza
1952 (4) SA 376
(A) at
380G-H.
[58]
1952 (3) SA 764 (N).
[59]
Id at 770F-H.
[60]
These operations were conducted on 9 October 2001 at the premises
of Thales International Africa Ltd (Mauritius) and Mutual Trust
Management (Maurititus)
Ltd with the aim of obtaining evidence to be used in the Shaik proceedings.
[61]
[2007] 1 All SA 497 (C).
[62]
Act 32 of 1998.
[63]
Section 7(4)(a)(ii) reads: “The head of an Investigating
Directorate shall be assisted in the exercise of his or her powers and
the
performance of his or her functions by prosecutors”.
[64]
The allegations were
that Mr Downer elicited search warrants that were “manifestly overbroad” and
proffered himself as a witness
in the Shaik and Zuma trials.
[65]
Above n 61.
[66]
Smyth v Ushewokunze and Another
1998 (2) BCLR 170
(ZS) at
174E-F.
[67]
Jesse v Pratt NO and Others
2001 (8) BCLR 810
(Z) at 816F-I.
[68]
Jaipal
above n 50 at para 5.
[69]
S v Jija and Others
1991 (2) SA 52
(E) at 67J-68B, quoted
with approval in
Reuters Group PLC and Others v Viljoen and Others
NNO
2001 (12) BCLR 1265
(C) at para 45.
[70]
[1955] SCR 16; (1955) 110 CCC 263.
[71]
Id at 23-24 and 270 respectively.Â
This passage has been
quoted with approval in
Phato v Attorney-General, Eastern Cape and Another;
Commissioner of South African Police Services v Attorney-General, Eastern Cape

and Others
1994 (5) BCLR 99
(E) at 117G-I;
Shabalala and Others v The
Attorney-General of Transvaal and Others
1994 (6) BCLR 85
(T) at 113D-F;
S
v Scholtz
1997 (1) BCLR 103
(NmS) at 119G-I.
[72]
See n 2 above.
[73]
See n 4 above.
[74]
See paras 3-4 above.
[75]
Section 12(1) reads:
“Everyone has the right to freedom and security of the
person, which includes the right
―
(a)     not to be deprived of freedom arbitrarily or without just
cause;
(b)     not to be detained without trial;
(c)     to be free from all forms of violence from either public or
private sources;
(d)     not to be tortured in any way; and
(e)     not be
treated or punished in a cruel, inhuman or degrading way.”
[76]
See for example
S v Kibido
1998 (2) SACR 213
(SCA) at
216g-j;
S v Brand
1998 (1) SACR 296
(C) at 303c-e;
S v Pillay
1977 (4) SA 531
(A) at 535A-G;
S v Rabie
1975 (4) SA 855
(A) at 857C-F;
S v Sibiya
1973 (2) SA 51
(A) at 56A-B and 57B-C;
S v Berliner
1967
(2) SA 193
(A) at 200G;
S v Fazzie
and Others
1964 (4) 673 (A) at
683A and 684A-C;
S v Anderson
1964 (3) SA 494
(A) at 495C-H;
R v Zulu
and Others
1950 (1) SA 489
(N) at 494A-G and 497A-D;
R v Reece
1939
TPD 242
at 243-244;
R v Taljaard
1924 TPD 581
at 582 and 583;
R v
Mapumulo and Others
1919 AD 56
at 57.
[77]
It was submitted in the applicants’ written argument that the new
constitutional order “must be reflected in the way we view
the seriousness of offences
committed by people of disadvantaged backgrounds seeking to unshackle their
oppression.”
[78]
The
Broad-Based Black Economic Empowerment Act 53 of 2003
, the
Preferential Procurement Policy Framework Act 5 of 2000
and the
Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000
.
[79]
Section 35(3)(n)
provides:
“Every
accused person has the right to a fair trial, which includes the right to the
benefit of the least severe of the prescribed
punishments if the prescribed
punishment for the offence has been changed between the time that the offence
was committed and the
time of sentencing”.
[80]
This is the date on which
section 51
came into force.
[81]
The indictment in respect of Count 1 reads as follows:
“NOW THEREFORE the accused are guilty
of the crime of corruption in contravention of section 1(1)(a) of the
Corruption Act, No
94 of 1992
IN THAT
during the period 1 October 1995 to 30 September 2002 and at or near Durban in
the district of Durban, the accused unlawfully
and corruptly gave the
abovementioned schedule benefits, which were not legally due, to Zuma, upon
whom the powers had been conferred
and/or who had the duties as set out in the
preamble, with the intention to influence Zuma to commit and/or omit any act in
relation
to his powers and/or duties to further the interest of the accused
and/or the entities associated with the accused as set out in
the preamble
and/or with the intention to reward Zuma because he so acted in excess of such
powers or any neglect of such duties,
as set out in the preamble”.
[82]
Section 51(3)(a) provides:
“If
any court referred to in subsection (1) or (2) is satisfied that substantial
and compelling circumstances exist which justify
the imposition of a lesser
sentence than the sentence prescribed in those subsections, it shall enter
those circumstances on the
record of the proceedings and may thereupon impose
such lesser sentence
.”
[83]
Section 39(2) of the Constitution provides:
“When
interpreting any legislation, and when developing the common law or customary
law, every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
[84]
Above para 11.