S v Shaik and Others (CCT 86/07) [2008] ZACC 7; 2008 (5) SA 354 (CC) ; 2008 (2) SACR 165 (CC) ; 2008 (8) BCLR 834 (CC) (29 May 2008)

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S v Shaik and Others (CCT 86/07) [2008] ZACC 7; 2008 (5) SA 354 (CC) ; 2008 (2) SACR 165 (CC) ; 2008 (8) BCLR 834 (CC) (29 May 2008)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 86/06
[2008] ZACC 7
SCHABIR
SHAIK First Appellant
NKOBI
HOLDINGS (PTY) LTD Second Appellant
NKOBI
INVESTMENTS (PTY) LTD Third Appellant
versus
THE
STATE Respondent
Heard
on : 26 February 2008
Decided
on : 29 May 2008
JUDGMENT
O’REGAN
ADCJ:
On
2 June 2005, the three appellants
1
were convicted of corruption as defined by sections 1(1)(a)(i) and
(ii) of the Corruption Act 94 of 1992.
2
Following from those convictions the state obtained an order from
the Durban High Court on 31 January 2006 requiring the appellants
to pay to the state the value of three benefits which the High
Court held to constitute proceeds of crime, as contemplated by
the
Prevention of Organised Crime Act 121 of 1998 (the Act or POCA).
The agreed value of these benefits at the time was over
R34
million. It is this order which forms the subject matter of the
present appeal.
Brief
history of the litigation
The
appellants’ corruption convictions were based on the High Court’s
finding that from October 1995 to September 2002 they
corruptly
made a series of payments to Mr Jacob Zuma. Mr Zuma was, from
October 1995 till mid-1999, the Member of the Executive
Council for
Economic Affairs and Tourism in the province of KwaZulu-Natal.
Then, from mid-1999 till June 2005, he was the Deputy
President of
the Republic of South Africa and Leader of Government Business in
the national Parliament. He was also the National
Chairperson of
the African National Congress from 1994 until 1997; and its Deputy
President thereafter. The purpose of the payments
made by the
appellants was to influence Mr Zuma to use his name and political
influence for the benefit of Mr Shaik and his business
enterprises.
The payments amounted to over R1 million.
After
the appellants’ convictions in June 2005, the state initiated
proceedings for a restraint order against them and two other
companies, Kobifin (Pty) Ltd and Kobitech (Pty) Ltd,
3
in terms of section 26 of the Act.
4
By agreement between the parties, an order was made on 3 June 2005
restraining the appellants from dealing with certain property
which
was placed under the control of a curator bonis. The purpose of
the restraint order was to preserve the assets pending
an
application to be brought by the prosecution for the confiscation
of proceeds of crime in terms of section 18 of the Act.
In brief,
that section provides that after convicting a person of an offence,
a court may, on the application of the public
prosecutor, enquire
into whether a benefit has been derived from that offence or from
related criminal activity; and if the court
finds that a benefit
has arisen, may make an order for the payment to the state of any
amount it considers appropriate.
5
The
National Director of Public Prosecutions (NDPP) then applied for a
confiscation order in terms of section 18, and the High
Court
initiated an enquiry into the question whether the appellants had
received a benefit from the offence of which they had
been
convicted, as contemplated by that section. Written statements,
answers and replies were filed by the parties in terms
of section
21 of the Act. These statements formed part of the record before
this Court.
At
the conclusion of the section 18 enquiry, the High Court granted a
confiscation order in respect of three benefits which the
appellants had received in connection with the crimes of which they
had been convicted. It should be noted in passing that the
NDPP
had applied for the confiscation of four benefits, but the High
Court refused to grant the confiscation of the fourth benefit,
and
nothing further will be said about that benefit in this judgment.
The
three benefits in respect of which a confiscation order was made
were the following. The first benefit was the value of a
25%
shareholding owned by Nkobi Investments (Pty) Ltd (the third
appellant) in Thint (Pty) Ltd (formerly known as Thomson-CSF
(Pty)
Ltd
6
).
Nkobi Holdings (Pty) Ltd (the second appellant) is the sole
shareholder in the third appellant and consequently has the same
25% interest in Thint. Thint, in turn, holds 80% of the shares in
African Defence Systems (Pty) Ltd (ADS), a company forming
part of
the consortium that received government contracts to provide the
combat munitions suites for the South African Navy’s
new
corvettes, which were purchased in what can loosely be referred to
as “the arms deal”.
Nkobi
Investments therefore holds an effective 20% share in ADS, as does
Nkobi Holdings as the holding company of Nkobi Investments.
The
agreed value of this benefit to both Nkobi Investments and Nkobi
Holdings, as at the time of the restraint order, was R21
018 000.
Mr Shaik holds 92% of the shares in Nkobi Holdings and his interest
in Thint through that shareholding was thus valued
at R19 336 560.
Nkobi
Investments raised the R7 464 000 purchase price for its shares in
Thint by borrowing the money from Thomson-CSF International
Africa
Ltd (Mauritius). The loan was secured by a pledge of all Nkobi
Investments’ shares in Thint to the Mauritian company
as well as
a pledge of all dividends to be declared by Thint and accruing to
Nkobi Investments. An escrow agreement was entered
into in terms
of which the shares and dividends were to be retained by an escrow
agent until Nkobi Investments had repaid the
capital and interest
due to the Mauritian company.
The
second benefit was the accumulated dividends received by Nkobi
Investments from its shareholding in Thint and received in
turn by
Thint from ADS between 18 June 2001 and 31 January 2006 (when the
High Court issued the confiscation order). The total
amount of the
dividends so declared was agreed by the parties to be R12 797 331
(made up of at least six separate dividends declared
between 2001
and 2006). This sum is the full value of the second benefit as
accrued to Nkobi Investments and Nkobi Holdings,
with Mr Shaik’s
share being 92% of that total and amounting to R11 773 544. The
parties agree that the full amount of the
dividends declared was
used by Nkobi Investments to repay the Mauritian company from which
it had borrowed the money to pay for
the Thint shares in the first
place. It is also common cause that the loan has now been fully
repaid.
The
third benefit was the value of Nkobi Investments’ sale of 10% of
its shareholding in Thint Holding. This shareholding was
valued at
R499 568. Although the High Court ordered the confiscation of the
third benefit as well, that order was overturned
on appeal by the
Supreme Court of Appeal and there has been no cross-appeal against
that decision. Accordingly, the third benefit
has no further
relevance to this judgment.
The
High Court made joint and several orders for payment of the value
of the three benefits against each of the appellants, the
one
paying, the others to be absolved. In this regard, of course, it
should be noted that the joint and several liability of
Mr Shaik in
each case was limited to 92% of the total liability, as follows
from the facts set out above. The NDPP had originally
sought
individual confiscation orders against each of the appellants
separately in the full amount of the benefit, but they abandoned
those claims and sought an order on the basis of joint and several
liability.
The
appellants were granted leave to appeal to the Supreme Court of
Appeal against the grant of the confiscation order. They
simultaneously applied for leave to appeal against their
convictions and sentences. The Supreme Court of Appeal, as stated

above, upheld the appeal relating to the confiscation order in
respect of the third benefit, but otherwise dismissed the appeals
relating to the confiscation order.
7
It also dismissed the appeals against convictions and sentences
(in some cases dismissing the further applications for leave
to
appeal in respect of those issues).
8
The
appellants then approached this Court for leave to appeal both
against their convictions and sentences and against the
confiscation
order made by the Durban High Court. However, on 2
October 2007, this Court dismissed the application for leave to
appeal against
the convictions and sentences on the grounds that it
did not bear prospects of success.
9
Leave to appeal against the confiscation order was granted,
10
the Court having found that the application for leave to appeal did
raise constitutional issues and that it was in the interests
of
justice that leave be granted.
The
facts relating to the acquisition of the two benefits
As
set out above, the two benefits at issue in this case relate to
Nkobi Investments’ shareholding in Thint, and through that
shareholding, its interest in ADS. From the early 1990s, the arms
company Thomson-CSF (France), sought to invest in South Africa.
It
appointed as its local representative, Mr Pierre Moynot. Early on,
Mr Moynot met Mr Shaik, and on 6 August 1995, Mr Moynot
(Vice
President of Thomson-CSF in South Africa) wrote to Mr Shaik and to
Nkobi Holdings proposing that Nkobi Holdings take a
30-35% share in
a company which Thomson-CSF intended to establish in South Africa.
The new company would enter into agreements
with existing South
African defence companies.
11
The letter stated that if Mr Shaik was in agreement with the
proposal, he should travel to Paris to finalise an agreement with
Thomson-CSF. This letter was followed by a further letter on 10
August 1995 which repeated the arrangements proposed in the
letter
of 6 August subject to the qualification that:
“
It is understood that . . .
the transactions contemplated in this letter are entirely subject to
the satisfactory negotiation, execution
and delivery by both parties
of all necessary detailed and definitive agreements providing for
the legal and financial terms of
such transactions, which we foresee
to take place within 5 weeks.”
Then,
during 1996, two Thomson-CSF subsidiaries were incorporated.
Thomson-CSF Holding Southern Africa (Pty) Ltd was incorporated
on
21 May 1996. To avoid confusion, this company shall be referred to
as “Thint Holding”, to which its name was subsequently
changed.
Nkobi Investments had a 10% shareholding in Thint Holding.
Thomson-CSF (Pty) Ltd was incorporated on 16 July 1996
in which
Thint Holding had a 70% shareholding and Nkobi Investments a 30%
direct shareholding. Again to avoid confusion, Thomson-CSF
(Pty)
Ltd shall be referred to as “Thint”, its current name. The two
subsidiary companies were initially involved in a drivers’
licence project which came to be known as Prodiba.
At
a shareholders’ meeting on 25 August 1997, the possible
acquisition of ADS by one of the Thint companies was discussed.
At
that stage, ADS fell within the Altech group of companies and was
known as Altech Defence Systems. The reason for the proposed
acquisition of ADS was that it was perceived to be well-placed to
succeed in the tender process surrounding the arms deal.
12
The minutes of that meeting establish that the directors and
shareholders agreed that, subject to the consent of Nkobi
Investments
and to reaching a satisfactory agreement with Altech,
Thint would proceed with its investment in the business of ADS. It
was
also resolved that Nkobi Investments would participate in the
investment and would employ its best endeavours to self-finance its
participation in the project but that if there were a shortfall it
would be financed by Thomson-CSF (France) subject to a side
agreement between Nkobi Investments and Thomson-CSF (France).
13
That
meeting was followed by a letter from Mr Moynot to Mr Shaik dated
22 September 1997.
14
The letter made it plain that an agreement in principle had been
reached between Altech (the shareholders of ADS) and Thint
for the
acquisition of 50% of the shares in ADS. It further stated that
Nkobi Holdings would have to provide R7 863 000 by 15
December 1997
to make the purchase possible. The balance of the R21 250 000
purchase price would be paid by the other shareholders
of Thint.
However,
despite these events, in March 1998 Thomson-CSF (France) concluded
a written sale agreement (amended in April 1998) with
Altech to the
effect that Thomson-CSF (France) acquired 50% + 1 of the shares in
ADS. Nkobi Holdings was therefore left out
of the shareholding
arrangement. After Mr Shaik became aware of the fact that
Thomson-CSF (France) had purchased a 50% stake
in ADS directly, he
wrote to Mr Perrier, the chief executive officer of Thomson-CSF
(France) stating that “the Honourable Minister
Jacob Zuma . . .
[was] extremely concerned with the conduct of the Thomsons-CSF
group operating in South Africa” and requesting
a meeting to be
held between Mr Perrier and Mr Zuma in Durban.
15
On 13 May 1998 Mr Shaik wrote again to Mr Perrier, and at a joint
meeting of shareholders of Thint and Thint Holding on 9 June
1998,
he raised the issue of the failure to involve the Nkobi group in
the acquisition of ADS and threatened legal action.
On
2 July 1998 a meeting was held in London attended by Mr Zuma, Mr
Shaik, Mr Perrier and a Mr de Bollardiere, also of Thomson-CSF
(France). During the criminal trial, Mr Moynot testified that
following this meeting, Thomson-CSF (France) decided to rearrange
its corporate affairs so as to locate the holding of the ADS shares
in one of its South African subsidiaries and to give the
Nkobi
group a share in the ADS shareholding. Importantly, this was
confirmed in the appellants’ section 21 affidavit, in which
the
appellants’ attorney, Mr Parsee, stated that:
“
follow[ing]
the meeting of 2 July 1998 during which Mr Zuma met with Mr Perrier
and at which meeting Mr Zuma explained that the
rumour Perrier had
heard . . . was false . . . [t]he matter regarding the shareholding
in ADS . . . was, as a result, resolved.”
It is
thus common cause that the consequence of the meeting held in London
between Mr Zuma, Mr Shaik and Mr Perrier was that Thomson-CSF
(France) undertook to give the Nkobi group a share in the
acquisition of ADS.
Thereafter,
in February 1999, Thomson-CSF (France) acquired the remaining 50%
of the shares in ADS, so that ADS became its wholly-owned
subsidiary. The value of ADS at the time was calculated as R18 672
000. The rearrangement of the corporate structure was completed
by
September 1999. Nkobi Investments’ 10% shareholding in Thint
Holding was sold to Thomson-CSF (France). Thomson-CSF (France)
sold 80% of the ADS shares to Thint. The restructuring left Nkobi
Investments holding 25% of the shares in Thint and Thint Holding
with the remaining 75%. The result was that Thint came to hold 80%
of the shares in ADS, giving Nkobi Investments an effective
20% of
the shares (as described in paragraphs 6 and 7 above). As set out
in paragraph 8 above, Nkobi Investments’ shareholding
was
financed by a loan from Thomson-CSF International Africa Ltd
(Mauritius) at an interest rate of prime plus 0,5%.
It
follows that it is Nkobi Investments’ shareholding in Thint, as
well as the dividends declared by Thint that arose from its
acquisition of ADS, which form the subject matter of the
confiscation order in this case.
Criminal
confiscation orders: the scheme of the Act
It
will be useful at this stage briefly to describe the scheme of
criminal confiscation contemplated by the Act. Chapter 5 of
the
Act confers a power on a criminal court to make a confiscation
order against a person who has been convicted of a crime where
the
court has found that the person has benefited from the crime.
Once
a person has been convicted, the prosecutor may apply for a
confiscation order.
16
In order for a confiscation order to be made, the court must find
that the person convicted of the offence has derived a benefit
from
the offence of which he or she has been convicted or of any
“criminal activity which the court finds to be sufficiently
related” to that offence.
17
The court may then make an order that the person pay to the state
“any amount it considers appropriate”.
18
A
confiscation order is a civil judgment for payment to the state of
an amount of money determined by the court and is made by
the court
in addition to a criminal sentence. Before going further, it is
important to emphasise that the order that a court
may make in
terms of chapter 5 is not for the confiscation of a specific
object, but an order for the payment of an amount of
money to the
state, even though it is ordinarily referred to as a “confiscation
order” and shall be throughout this judgment.
The mechanism of a
civil judgment sounding in money may well have been selected by the
legislature to avoid the difficulty of
tracing particular assets
which may have been the proceeds of crime and so to facilitate the
recovery of the value of the proceeds.
Section
12(3) of the Act provides that for the purposes of chapter 5, “a
person has benefited from unlawful activities if he
or she has at
any time, whether before or after the commencement of this Act,
received or retained any proceeds of unlawful activities.”

“Proceeds of unlawful activities” are in turn broadly defined
in section 1 of the Act as:
“
. . . any property or any
service, advantage, benefit or reward which was derived, received or
retained, directly or indirectly,
in the Republic or elsewhere, at
any time before or after the commencement of this Act, in connection
with or as a result of any
unlawful activity carried on by any
person, and includes any property representing property so derived”.
The
section is thus widely cast, something which becomes even more
evident when the definition of “property” contained in section
1
of the Act is considered. “Property” is defined as:
“
. . . money or other
movable, immovable, corporeal or incorporeal thing and includes any
rights, privileges, claims and securities
and any interest therein
and all proceeds thereof.”
One of
the reasons for the wide ambit of the definition of “proceeds of
crime” is, as the Supreme Court of Appeal noted, that
sophisticated criminals will seek to avoid proceeds being
confiscated by creating complex systems of “camouflage”.
19
Similarly,
the definition makes clear that proceeds of crime will constitute
proceeds even if “indirectly obtained”. The
Supreme Court of
Appeal held that a person who has benefited through the enrichment
of a company as a result of a crime in which
that person has an
interest will have indirectly benefited from that crime.
20
As counsel for the NDPP pointed out, when a shareholder commits a
crime by which his or her company is enriched, the shareholder
may
well benefit from the crime in two ways. The value of his or her
shares will increase, as will the dividends generated by
those
shares, because the company is now more profitable. Finally, it
should be noted that “proceeds”, as defined, include
anything
“derived, received or retained” in connection with or as a
result of the offences.
Section
18(2) sets two bases for calculating the upper limit of the amount
that may be confiscated.
21
For the purposes of this case, only the first is relevant: the
amount ordered to be confiscated may not exceed the value of
the
proceeds of the offences or related criminal activities as
calculated in accordance with chapter 5 of the Act.
22
That calculation will, of course, be based on the definition of
the proceeds of unlawful activities as set out in the Act.
Section
19(1) of the Act is also relevant in calculating the value. It
provides:
“
Subject to the provisions of
subsection (2), the value of a defendant’s proceeds of unlawful
activities shall be the sum of the
values of the property, services,
advantages, benefits or rewards received, retained or derived by him
or her at any time, whether
before or after the commencement of this
Act, in connection with the unlawful activity carried on by him or
her or any other person.”
Later
in this judgment, I shall return to the confiscation scheme in the
Act in order to consider the arguments raised by the
appellants as
to its proper interpretation.
The
appellants’ arguments
The
appellants argue that the confiscation order should not have been
made. Their arguments can be divided into two categories:
the
first are factual arguments relating to whether the Supreme Court
of Appeal was correct when it found that the two benefits
in issue
constitute the proceeds of crime; the second are legal arguments
relating to the proper interpretation of chapter 5
of the Act.
The
appellants proffered three factual arguments. First, they argued
that the two benefits did not flow from Mr Shaik’s criminal
activity but resulted instead from a prior joint venture agreement
entered into between Mr Shaik and/or the Nkobi Group and

Thomson-CSF (France). Their second argument was that the state had
not established that when Mr Zuma intervened on Mr Shaik’s
behalf
in July 1998 to secure Nkobi Investments’ involvement in the
acquisition of ADS, he did so because of the bribes he
had received
from Mr Shaik. The third argument was that the state had not shown
that Thomson-CSF (France) changed its course
of action in relation
to Nkobi Investments’ participation in the ADS shareholding
because of Mr Zuma’s intervention.
The
legal arguments raised by the appellants are the following. They
argue, first, that the Act properly interpreted does not
permit the
confiscation of both the full value of Nkobi Investments’
shareholding in Thint and the full value of the dividends
declared
by Thint, given that the appellants purchased the shares with a
loan which was repaid with the proceeds of the dividends.
Their
argument is that the definition of “proceeds of crime” in the
Act may not relate to what can loosely be referred to
as the “gross
proceeds” but only to “nett proceeds”. Their second argument
is that even if the Act does permit the confiscation
of both the
shareholding and the dividends, the High Court’s order was
disproportionate and should be set aside on appeal.
I will address
each of these factual and legal arguments in turn.
Did the shareholding and dividends arise from the joint venture
agreement between the appellants and Thomson-CSF (France)?
In
the appellants’ written submissions, their key factual argument
was that Nkobi Investments’ shareholding in ADS did not
arise
from Mr Zuma’s interventions on behalf of Mr Shaik, but resulted
instead from a prior joint venture agreement between
Nkobi
Investments and Thomson-CSF (France). As I have set out in
paragraph 15 above, in 1996 Thomson-CSF (France) established
two
subsidiary companies in South Africa (Thint and Thint Holding), and
originally Nkobi Investments had a shareholding in both
these
companies.
As
I have stated above, at a shareholders’ meeting in August 1997, a
resolution was adopted concerning the acquisition of ADS
by Thint.
23
Also, on 22 September 1997, Mr Moynot wrote to Mr Shaik stating
that an agreement in principle had been reached between Thint
and
Altech regarding Thint’s acquisition of 50% of the shares in ADS
and stating that Nkobi would need to present its share
of the
purchase price (R1 488 000 through Thint Holding and R6 375 000
through Thint) to participate in the acquisition.
24
However,
it is common cause that subsequent to these events Thomson-CSF
(France) received certain communications from sources
close to the
South African government suggesting that Mr Shaik was not a
suitable partner for the acquisition of ADS. Thomson-CSF
(France)
acted on these communications by purchasing ADS directly and not in
partnership with Mr Shaik. That purchase happened
on 3 March 1998.
At that time 50% + 1 share was purchased by Thomson-CSF (France)
with the balance continuing to be held by
Altech. In February 1999
the balance of the shares was sold by Altech to Thomson-CSF
(France).
After
Mr Shaik became aware of the initial purchase of ADS shares by
Thomson-CSF (France), he sent a fax to Mr Perrier stating
that Mr
Zuma was concerned at the conduct of Thomson-CSF (France) and
requesting a meeting. He sent a further letter on 13 May
1998, and
on 9 June 1998 he raised the matter at a joint meeting of Thint
Holding and Thint and threatened legal action against
Mr Moynot and
Thomson-CSF (France) on the basis of their failure to act in a bona
fide manner and on the basis of the shareholder
agreements.
The
meeting in London on 2 July 1998, however, resolved the problem as
I have set out above. The meeting was attended by Mr Zuma,
Mr
Shaik, Mr Perrier and another. It is clear from the evidence of
the appellants that, as a result of this meeting, Thomson-CSF
(France) changed its mind and agreed to transfer its shareholding
in ADS to one of its South African subsidiaries in which the
Nkobi
group would be given a shareholding.
It
is also important to note the following: Mr Moynot suggested in his
evidence in the criminal trial that Mr Shaik may have had
a claim
against Thomson-CSF (France), although he did not make clear what
he thought the legal basis for that claim was.
25
Yet Mr Moynot also made it quite clear that Thomson-CSF (France)
would have resisted any legal action that Mr Shaik initiated.
He
made it clear that if Thomson-CSF (France) decided that Mr Shaik
“was not the right guy or he was so badly seen by the
decision-maker”, they would not have entered into a joint venture
agreement regarding the acquisition of ADS and “that’s
it”.
He added “we are big enough to be able to resist such a threat”.
The
Supreme Court of Appeal agreed with the High Court that the
appellants had not established that they were possessed of
contractual
rights to have the ADS shares held by the Thint
companies; or alternatively, if there was an agreement to that
effect, that Thomson-CSF
(France) was a party to that agreement.
The appellants argued that the Supreme Court of Appeal had erred in
suggesting that
the appellants bore the burden of establishing that
the acquisition of the shareholding arose from pre-existing
contractual obligations
and that it was instead for the state to
establish that the acquisition of the shareholding constituted
proceeds of criminal
activity. As will become apparent from what
follows, this case does not turn on the incidence of the onus and
it is therefore
not necessary for it to be considered further here.
In
relation to the question of whether a joint venture agreement was
in existence, the question is whether the parties intended
to be
bound (ie acted
animo contrahendi
) before the agreements
were actually signed
26
and whether there was sufficient substance in the agreement in
principle to give rise to an enforceable obligation.
27
Whatever else, it is certain that no written contracts had been
signed giving Nkobi Investments any rights. Moreover, the letter
of 22 September 1997 made clear that contracts were yet to be
drafted setting out the full details of the arrangement and the
indications are strong that no binding agreement would come into
effect until its final terms were embodied in written instruments
signed by the contracting parties. In the absence of a clear
agreement, the question of whether Nkobi Investments would have
been able to establish a legally enforceable agreement must be open
to some significant doubt.
The
Supreme Court of Appeal held (in addition to its conclusion that no
joint venture agreement had been established by the appellants)
that even if the appellants had a pre-existing contractual right to
participate in the acquisition of ADS, Mr Zuma’s intervention
on
2 July 1998 had nevertheless had the direct effect of benefiting
the appellants in that the appellants were put in possession
of the
ADS shareholding without having to litigate with Thomson-CSF
(France) over it.
28
There can be no doubt from the evidence given by Mr Moynot that
whether or not the appellants are correct in asserting that
a
legally binding agreement had been concluded by Thomson-CSF
(France), the South African subsidiaries of Thomson-CSF, and the
Nkobi group of companies, Thomson-CSF (France) would not have
accepted that they were bound without being forced to do so. At
the very least, therefore, the intervention of Mr Zuma resulted in
the appellants not needing to engage in that legal battle.
Indeed,
in argument, Mr Brassey (for the appellants) correctly conceded
that to the extent that the intervention removed the
need for
costly litigation, and facilitated the acquisition of the
shareholding, it constituted a benefit within the contemplation
of
the Act.
For
this reason it is not necessary to come to a firm view as to
whether there was a binding joint venture agreement, for even
if
there was, it would have been costly and difficult to enforce
(particularly in the light of Mr Moynot’s evidence that

Thomson-CSF (France) would have fought it, if it thought it
appropriate to do so, and the fact that it would have to have been
before an arbitrator in Geneva). Mr Shaik did not choose to
litigate. Instead he called on Mr Zuma for assistance (see the
letter of 17 March 1998)
29
and that assistance was furnished in July. The effect of that
intervention is clear and not disputed on the record: Thomson-CSF
(France) changed its mind and set in train a process whereby the
Nkobi group gained a significant share in the ADS initiative.
What
is clear is that the appellants did not have to litigate because Mr
Zuma’s intervention made that unnecessary. Accordingly,
in my
view, the joint venture argument cannot assist Mr Shaik because
even if it did exist – something I do not decide in this
judgment
– the subsequent conduct of Thomson-CSF (France) meant that Mr
Shaik nevertheless required Mr Zuma’s assistance
to ensure that
his group of companies obtained a share in the ADS acquisition.
The first factual argument made by the appellants
is therefore of
no assistance to them. I turn now to the other two factual issues
raised by the appellants.
Was it necessary for the state to establish that Mr Zuma
intervened on Mr Shaik’s behalf because of the bribe and that
Thomson-CSF
(France) changed its mind after that meeting because of
Mr Zuma’s intervention? If so, have these facts been shown?
For
the first time, in oral argument in this Court, it was submitted by
Mr Brassey that to succeed under section 18 of the Act,
it is
necessary for the state to show not only that: (a) Mr Shaik, with
the intention to corrupt, bribed Mr Zuma in order to
perform such
acts as the act of intervention that took place on 2 July 1998 for
the purpose of promoting Mr Shaik’s business
interests (which he
admitted had been established on the record); but also (b) that Mr
Zuma intervened on behalf of Mr Shaik
in consequence of the bribe
and not because of friendship or some other reason (which Mr
Brassey submitted had not been shown);
and (c) that Thomson-CSF
(France) must be proved to have recanted in respect of the ADS deal
in consequence of Mr Zuma’s intervention
(which Mr Brassey also
submitted had not been shown). Mr Brassey rightly accepted that
(a) has been established on the record,
and it is thus the latter
two submissions, (b) and (c), which now need to be considered.
These
submissions were new, and Mr Trengove, for the state, was entitled,
as he did, to object to their being made. Mr Trengove’s
response
was fourfold: (i) these were new matters of which the state had not
had notice and for which the truncated record had
not been
prepared; (ii) they raised questions of fact not for the
Constitutional Court to decide on the principles set out in
S v
Boesak
;
30
(iii) the arguments were conceptually flawed; and (iv) in any
event, the necessary facts had been demonstrated. In my view,
although there can be no doubt that these are new arguments, they
can and should be dealt with on their merits as this can be
done
without unfairness to the respondent and on the record before us.
One must start by recognising that the Act, properly
construed,
requires that the state establish on a balance of probabilities
that the benefits it seeks to confiscate (the shareholding
and
dividends) flowed from the bribes paid by Mr Shaik to Mr Zuma.
Counsel for the appellants very properly conceded in argument
that,
given the criminal conviction of Mr Shaik, it must be accepted for
the purpose of these proceedings that Mr Shaik did pay
bribes to Mr
Zuma.
I
shall turn in a moment to deal with submission (b) made by Mr
Brassey, but I start with submission (c). The submission was
that
it had not been established on the record that the change of heart
by Thomson-CSF (France), which resulted in the restructuring
of its
companies to enable Nkobi Investments to obtain an interest in ADS,
resulted from the intervention of Mr Zuma. This factual
proposition is not correct. The High Court found that the decision
to include Nkobi Investments in the ADS deal flowed directly
from
Mr Zuma’s intervention. Mr Parsee, the appellants’ attorney,
admits as much on the record before this Court.
The
concern of Thomson-CSF (France), as candidly admitted by Mr Moynot
in his evidence,
31
was to go into partnership with a company that would have as a
backer a person of significant influence in government. It had
withdrawn from the proposed joint venture with Nkobi Investments
when doubts had been raised as to whether it was such a company.

At the meeting of 2 July 1998, Mr Zuma put that doubt to rest. And
what is more, it is clear from Mr Shaik’s letters (and
from the
minutes of the shareholders and directors meeting of Thint Holding
and Thint in June 1998) that he wanted the meeting
between
Thomson-CSF (France) and Mr Zuma because he knew that the French
company needed to understand from Mr Zuma that he supported
Mr
Shaik and would afford the influence that it sought.
With
regard to point (b) of Mr Brassey’s submissions, it is neither
necessary nor appropriate in these proceedings to traverse
Mr
Zuma’s subjective state of mind. Mr Brassey sought to suggest
that, regardless of Mr Shaik’s purpose in seeking to have
Mr Zuma
attend the meeting, Mr Zuma may have attended the meeting in London
for reasons other than those related to the payments
he had
received from Mr Shaik. He cited as possibilities friendship or
collegiality or the fact that Mr Shaik was Mr Zuma’s
financial
adviser. The subjective state of mind of Mr Zuma is not a matter
with which this Court should concern itself. It is,
after all, not
Mr Zuma against whom the confiscation order was made by the High
Court. The only question in this Court is whether
on a balance of
probabilities the state has established that the benefits flowed to
the appellants as a result of the appellants’
criminal conduct.
In this regard, the following conclusion of the Supreme Court of
Appeal is pertinent:
“
On a conspectus of all the
evidence there is, in our view, only one reasonable inference to be
drawn. It is that, in making the
payments in issue (whether as
inducement or reward), Shaik intended to influence Zuma, in
furtherance of the business interests
of Shaik and his companies, to
act in conflict with the duties imposed upon Zuma by the terms of ss
96(2) and 136(2) of the Constitution.”
32
This
finding of the Supreme Court of Appeal is conclusive of the issue
before us. The payments were made by Mr Shaik in order to
influence
Mr Zuma to promote Mr Shaik’s business interests and, in attending
the meeting in London in July 1998, Mr Zuma did
as a matter of fact
promote Mr Shaik’s interests.
I
conclude therefore that the state has established as a matter of
fact that both benefits in issue in this case flowed from Mr
Zuma’s
support for Mr Shaik and the Nkobi group of companies as evidenced
at least by his intervention on 2 July 1998 in support
of the
appellants’ claim to participate in the acquisition of ADS.
I
must now consider the appellants’ arguments based on the
interpretation of the Act. Before turning to do so, I think it

might be helpful to consider briefly the purposes of chapter 5 of
the Act.
The
purposes of chapter 5 of the Act
This
is the first time that the purposes of chapter 5 of the Act have
been considered by this Court.
33
As described above, chapter 5 deals with the making of
confiscation orders by a criminal court at the end of a criminal
trial.
Its structure and process is therefore different to that
contemplated by chapter 6. The preamble to the Act is lengthy but

it is useful to set it out, as it captures the overall purposes of
the Act very clearly:
“
WHEREAS the Bill of Rights
in the Constitution of the Republic of South Africa, 1996 . . .
enshrines the rights of all people in
the Republic and affirms the
democratic values of human dignity, equality and freedom;
AND WHEREAS the
Constitution places a duty on the State to respect, protect, promote
and fulfil the rights in the Bill of Rights;
AND WHEREAS there is a
rapid growth of organised crime, money laundering and criminal gang
activities nationally and internationally
and since organised crime
has internationally been identified as an international security
threat;
AND WHEREAS organised crime,
money laundering and criminal gang activities infringe on the rights
of the people as enshrined in
the Bill of Rights;
AND WHEREAS it is the right
of every person to be protected from fear, intimidation and physical
harm caused by the criminal activities
of violent gangs and
individuals;
AND WHEREAS organised
crime, money laundering and criminal gang activities, both
individually and collectively, present a danger
to public order and
safety and economic stability, and have the potential to inflict
social damage;
AND WHEREAS the South
African common law and statutory law fail to deal effectively with
organised crime, money laundering and criminal
gang activities, and
also fail to keep pace with international measures aimed at dealing
effectively with organised crime, money
laundering and criminal gang
activities;
AND BEARING IN MIND that it
is usually very difficult to prove the direct involvement of
organised crime leaders in particular cases,
because they do not
perform the actual criminal activities themselves, it is necessary
to criminalise the management of, and related
conduct in connection
with enterprises which are involved in a pattern of racketeering
activity;
AND WHEREAS no person
convicted of an offence should benefit from the fruits of that or
any related offence, whether such offence
took place before or after
the commencement of this Act, legislation is necessary to provide
for a civil remedy for the restraint
and seizure, and confiscation
of property which forms the benefits derived from such offence;
AND WHEREAS no person
should benefit from the fruits of unlawful activities, nor is any
person entitled to use property for the
commission of an offence,
whether such activities or offence took place before or after the
commencement of this Act, legislation
is necessary to provide for a
civil remedy for the preservation and seizure, and forfeiture of
property which is derived from unlawful
activities or is concerned
in the commission or suspected commission of an offence;
AND WHEREAS effective
legislative measures are necessary to prevent and combat the
financing of terrorist and related activities
and to effect the
preservation, seizure and forfeiture of property owned or controlled
by, or on behalf of, an entity involved
in terrorist and related
activities;
AND WHEREAS there is a need
to devote such forfeited assets and proceeds to the combating of
organised crime, money laundering and
the financing of terrorist and
related activities;
AND WHEREAS the pervasive
presence of criminal gangs in many communities is harmful to the
well being of those communities, it is
necessary to criminalise
participation in or promotion of criminal gang activities”.
The
ninth clause affirms that because:
“
no person convicted of an
offence should benefit from the fruits of that or any related
offence . . . legislation is necessary to
provide for a civil remedy
for the restraint and seizure, and confiscation of property which
forms the benefits derived from such
offence”.
In my
view, it is this clause in the preamble which points most directly
to the key purpose of chapter 5: to ensure that no person
can
benefit from his or her wrongdoing. That this is the primary
purpose of chapter 5 has also been recognised by the Supreme
Court
of Appeal, which held in
NDPP v Rebuzzi
that “[t]he primary
object of a confiscation order is not to enrich the State but rather
to deprive the convicted person of ill-gotten
gains.”
34
From
this primary purpose, two secondary purposes flow. The first is
general deterrence: to ensure that people are deterred in
general
from joining the ranks of criminals by the realisation that they
will be prevented from enjoying the proceeds of the
crimes they may
commit. And the second is prevention: the scheme seeks to remove
from the hands of criminals the financial wherewithal
to commit
further crimes. These purposes are entirely legitimate in our
constitutional order.
Counsel
for the NDPP argued that punishment is one of the purposes of
chapter 5. In so arguing, he relied on jurisprudence in
the United
Kingdom based on similar legislation. In the United Kingdom, there
have been a range of statutes that have afforded
the power to a
court convicting a person of a criminal offence to make an order
for the confiscation of proceeds of that offence.
35
One of the questions that has arisen in relation to the procedure
has been whether it falls within the ambit of article 6(2)
of the
European Convention on Human Rights which provides that “[e]veryone
charged with a criminal offence shall be presumed
innocent until
proved guilty according to law.”
In
an early case dealing with the UK Drug Trafficking Act, the
European Court of Human Rights held, by a majority, that article
6(2) was not applicable to the confiscation proceedings.
36
Although there was a difference between the majority and the
minority on this question, the Court was unanimous in holding that
the procedure did not infringe the rights entrenched in the
Convention.
In
R v Rezvi
, Lord Steyn described the purposes of the United
Kingdom Criminal Justice Act, 1988 as follows:
“
The provisions of the 1988
Act are aimed at depriving such offenders of the proceeds of their
criminal conduct. Its purposes are
to punish convicted offenders,
to deter the commission of further offences and to reduce the
profits available to fund further
criminal enterprises. These
objectives reflect not only national but also international
policy.”
37
Lord
Steyn thus held that one of the purposes of the 1988 legislation was
to punish offenders. This dictum was relied upon by counsel
for the
NDPP, as was the dictum of Lord Rodger of Earlsferry in the
subsequent case of
R v Smith (David)
where, in determining
what constitutes a benefit for confiscation, he remarked:
“
It therefore makes no
difference if, after [an offender] obtains it, the property is
destroyed or damaged in a fire or is seized
by customs officers: for
confiscation order purposes the relevant value is still the value of
the property to the offender when
he obtained it. Subsequent events
are to be ignored . . . . Such a scheme has the merit of simplicity.
If in some circumstances
it can operate in a penal or even a
draconian manner, then that may not be out of place in a scheme for
stripping criminals of
the benefits of their crimes. That is a
matter for the judgment of the legislature, which has adopted a
similar approach in enacting
legislation for the confiscation of the
proceeds of drug trafficking.”
38
The
English and European jurisprudence is instructive at least to the
extent that it makes plain that the legislation here under
consideration has a counterpart in another open democracy.
39
Yet the formulation of the rights to fairness in criminal and
civil procedure as entrenched in the European Convention on Human
Rights is different to the formulation of the rights in our own
Bill of Rights.
40
Although the provisions of the English legislation are similar to
those of our legislation, the constitutional framework is
different; and for this reason, I do not think that the
interpretation by the English courts of their legislation is
directly
applicable to the proper interpretation of our legislation
in the light of the spirit, purport and objects of our Bill of
Rights.
41
In
my view, understanding the purposes of chapter 5 of the Act is best
done on the terms of chapter 2 of our Constitution and
our own
legislation. Upon a proper construction of the Act, I am not
persuaded that a primary purpose of chapter 5 is the punishment
of
offenders. Its primary purpose seems rather to be to ensure that
criminals cannot enjoy the fruits of their crimes. It may
well be
that the achievement of this purpose might at times have a punitive
effect, but that is not to say that the primary purpose
is
punitive.
I
turn now to consider the two legal arguments raised by the
appellants.
Did
the Act permit the confiscation of the value of both benefits?
The
appellants argue that the Act, properly construed, did not permit
the confiscation of both the shareholding in Thint and the
dividends declared by Thint. This argument is based on the
following reasoning. The appellants had to give value to purchase
the shareholding. To purchase the shares, they raised a loan which
was secured by an escrow agreement. The loan was ultimately
repaid
by the dividends as and when they were declared. The appellants
argue that accordingly the Act did not permit the confiscation
of
both the shareholding
and
the dividends. Their argument is
based on the construction they contend should be placed on section
18(1) of the Act.
42
They submit that the word “benefit” in section 18(1) must be
read to limit the broad language of the definition of “proceeds
of crime” in section 1 to apply only to nett proceeds of a crime.
In
my view, this submission is based on a misconception of the
section. As described in paragraph 25 above, section 12(3)
provides
that a person will have benefited from unlawful activities
if he or she has received or retained any proceeds of unlawful
activities.
What constitutes a benefit, therefore, is defined by
reference to what constitutes “proceeds of unlawful activities”.
It
is not possible in the light of this definition to give a
narrower meaning to the concept of benefit in section 18, for that

concept is based on the definition of the “proceeds of unlawful
activities”. That definition goes far beyond the limited

definition proposed by the appellants. “Proceeds” is broadly
defined to include any property, advantage or reward derived,
received or retained directly or indirectly in connection with or
as a result of any unlawful activity.
43
A further difficulty with the appellants’ argument is to be
found in section 18(2). That section expressly contemplates that
a
confiscation order may be made in respect of any property that
falls within the broader definition, and is not limited to a
nett
amount. The narrow interpretation of “benefit” proposed by the
appellants cannot thus fit with the clear language of
section 18
and the definition of “proceeds of unlawful activities”. To
interpret the section as suggested by the appellants
would require
giving a meaning to the section which its ordinary wording cannot
sustain. In any event, both the dividends and
the shares amounted
to proceeds that flowed directly from the crime.
The
NDPP relied heavily on British jurisprudence in rebutting the
appellants’ arguments in this regard, particularly
R v Smith
(David)
,
44
but as I have made clear in paragraph 56 above, in my view that
jurisprudence is not directly helpful or relevant in determining
the proper constitutional construction of our own legislation.
For
these reasons, I conclude that the appellants are not correct in
their assertion that the Act does not permit the confiscation
of
the value of both the benefits.
I
turn now to consider the second argument raised by the appellants
and that is whether this Court should interfere with the

confiscation order made by the High Court. This question, in turn,
resolves itself into two enquiries. The first is the proper
approach on appeal to the exercise of the discretion by the High
Court; the second is the proper application of that approach
to the
exercise of the discretion in this case.
What
is the proper approach on appeal to the exercise of discretion by a
trial court in terms of section 18 of the Act?
The
first question that arises concerns the circumstances in which a
court will interfere with the exercise of discretion by the
court
making the confiscation order. This Court has previously held that
in order to determine the approach of an appellate
court to the
exercise of a discretionary power by another court, the court must
determine the nature of the discretion concerned.
45
In this case, the discretion conferred upon a court by section 18
is the discretion to determine the “appropriate” amount
that it
should order a defendant to pay. That determination is made once
the court has convicted the defendant of a criminal
offence and at
approximately the same time as it imposes a sentence upon the
person.
In
considering the nature of the discretion, it must be borne in mind
that the judge upon whom the discretion is conferred by
the statute
is the judge who has presided over the criminal trial and is the
judge who sentences the accused. As a result of
having heard all
the evidence and argument in the criminal trial, the judge has a
full understanding of all the issues in the
case. It seems to me
therefore that when the European Court of Human Rights considered a
similar procedure in terms of the United
Kingdom Drug Trafficking
Act, it was correct to characterise the equivalent discretion
conferred upon the domestic court in that
case as being analogous
to the discretion to determine the proper sentence to be imposed in
criminal proceedings.
46
In
our law, sentencing has always been considered to be “pre-eminently
a matter for the discretion of the trial Court”
47
which must be exercised in a judicial manner.
48
Ordinarily, therefore, a criminal sentence is not set aside on
appeal unless the sentence can be shown to have been vitiated
by
irregularity or misdirection or the sentence itself is disturbingly
inappropriate.
49
In
my view, given the close connection between the criminal conviction
and the confiscation order, it is apt that the discretion
conferred
upon the sentencing court by section 18 be considered for the
purposes of appellate jurisdiction in the same light
as the
imposition of sentence. It is peculiarly a matter for the court
which has convicted the relevant person; that is no doubt
the
reason why the legislature sought to ensure that it would be that
court which, in the first instance, would determine the
appropriate
amount to be confiscated. It will only be interfered with by an
appellate court where that court is satisfied that
the court which
determined the amount acted unjudicially or misdirected itself or
where the appellate court is of the view that
the amount
confiscated is disturbingly inappropriate.
Considerations
relevant to the exercise of the section 18 discretion
Before
turning to consider whether there are grounds for interference with
the High Court judgment in this case, it will be helpful
to set out
some considerations relevant to the exercise of the section 18
discretion. I should emphasise that the following
considerations
are not comprehensive. In approaching this question, a court will
bear in mind that the enquiry as to whether
proceeds of crime
should be confiscated is not the same enquiry as that to be
undertaken to determine whether an instrumentality
of an offence
should be confiscated. The purpose of confiscating proceeds of
crime is primarily to ensure that criminals do
not benefit from
their crimes. Instrumentalities of crime are confiscated for
different reasons and the considerations are therefore
not the
same.
50
First,
a court considering what will constitute an appropriate amount as
contemplated by section 18 will have regard to all the
circumstances of the criminal activity concerned. Secondly, in
considering what will be appropriate, a court will bear in mind
that the definition of “proceeds of unlawful activities” in the
Act makes it possible to confiscate property that has not
been
directly acquired through the commission of crimes. It also makes
it possible to confiscate property that has been acquired
not
through crimes of which the defendant has been convicted, but
through related criminal activity. One of the key considerations
a
court will take into account will be the extent to which the
property to be confiscated derived directly from the criminal
activities. In most circumstances it will be entirely appropriate
that all direct profits of crimes of which the defendant has
been
convicted be confiscated. So, a bank robber caught red-handed in
possession of R50 million which he or she has just stolen
from the
bank may quite appropriately be required to pay that money back.
In these circumstances, the primary purpose of the
Act – to
ensure that a criminal does not enjoy the fruits of his or her
crime – will be directly served.
On
the other hand, the more removed the derivation of the property
from the commission of the offence, the less likely it may
be that
it will be appropriate to order the full confiscation of the
property. In taking this consideration into account, however,
a
court must take care to remember that often criminals do seek to
disguise the profits of their crime. One of the purposes
of the
broad definition of “proceeds of unlawful activities” is to
ensure that wily criminals do not evade the purposes of
the Act by
a clever restructuring of their affairs.
A
third consideration relevant to determining what constitutes an
“appropriate” amount will be the nature of the crimes that
fall
within the express contemplation of the Act. The closer the crimes
or criminal activity concerned to the ambit of organised
crime, the
more likely it will be that the appropriate amount will constitute
all the proceeds of the unlawful activities as
defined in the Act.
The reason for this is that the larger the value of the
confiscation order, the greater the deterrent effect
of such an
order. The Act clearly seeks to impose its greatest deterrent
effect in the area of organised crime; and so where
organised crime
is involved, the purpose of general deterrence will often be best
achieved by a maximum confiscation order, although
of course that
will always be subject to a full consideration of all the relevant
circumstances. In asserting this principle,
too, it is important
to bear in mind the difficulty of prosecuting organised crime
successfully as is noted in the preamble to
the Act. The
difficulties are many. To name just one, crime syndicates are
often organised in a manner that makes it possible
for senior
members of the syndicate to evade prosecution, because many of the
crimes committed are committed by junior members
of the syndicate.
The
offence of corruption
Pursuant
to the third consideration just mentioned, it is necessary now to
consider the nature of the offence of corruption as
it relates to
the purposes of the Act. Corruption is a very serious offence and
is regarded as such not only in South Africa
but internationally.
Indeed, the World Bank estimates that corrupt governments and their
business partners take over $1 trillion
in bribes each year.
51
It is hard to assess the effect of corruption on the political and
economic life of a nation, yet it is clearly very harmful.
As the
preamble to the recent South African legislation on corruption, the
Prevention and Combating of Corrupt Activities Act 12 of 2004
recognises, corruption undermines the “institutions and values of
democracy and ethical values and morality” and jeopardises
development and the rule of law.
52
Corruption is therefore antithetical to the founding values of our
constitutional order. Indeed, as this Court held in
South
African Association of Personal Injury Lawyers v Heath and Others
:
“
Corruption and
maladministration are inconsistent with the rule of law and the
fundamental values of our Constitution. They undermine
the
constitutional commitment to human dignity, the achievement of
equality and the advancement of human rights and freedoms.
They are
the antithesis of the open, accountable, democratic government
required by the Constitution. If allowed to go unchecked
and
unpunished they will pose a serious threat to our democratic
state.”
53
Moreover,
corruption is often closely associated with organised crime. The
preamble to the
Prevention and Combating of Corrupt Activities Act
also
recognises that “there are links between corrupt activities
and other forms of crime, in particular organised crime and
economic
crime, including money-laundering . . .”. The United
Nations Convention Against Corruption points to the close
relationship
between corruption and organised crime in identical
terms.
54
South Africa has ratified the United Nations Convention Against
Corruption and thus bears international law obligations under
it.
55
The Convention entered into force on 14 December 2005. Article 31
of that Convention
56
requires States Parties to legislate to provide for confiscation of
the proceeds of crime or property the value of which corresponds
to
that of such proceeds “to the greatest extent possible”, and
“proceeds” is also defined broadly in the Convention
to include
“property derived from or obtained, directly or indirectly,
through the commission of an offence”.
57
Article
16 of the African Union Convention on Preventing and Combating
Corruption
58
requires States Parties to enact legislation to enable the
confiscation of the proceeds of offences of corruption. South
Africa
has ratified this Convention as well,
59
and it entered into force on 5 August 2006.
In
the light of the above, it is clear that corruption is a serious
crime which is potentially harmful to our most important

constitutional values. Moreover, it is clear that both our
Parliament and the international community recognise the close
links
between corruption and organised crime. In the
circumstances, it seems to me that corruption is one of the
offences closely
related to the purposes of the Act and a court
should bear this in mind when determining the “appropriate”
amount contemplated
in section 18 of the Act.
Did
the High Court misdirect itself in ordering the confiscation of both
the shareholding and the dividends?
The
High Court approached the task of determining the appropriate
amount by considering the nature and extent of the power conferred
upon it by section 18.
60
Squires J noted in particular the maximum limit on the amount as
stipulated by section 18(2)(a) of the Act. He then noted that
the
Court enjoyed a discretion, which he discussed briefly in the
following terms:
“
And finally, in setting the
parameters of a confiscation order, it should also be noted that
subject to the limitations of section
18(2) a Court that makes such
an order under section 18(1) exercises a discretion in its
determination in the amount of such order.
It ‘may’ make a
confiscation order ‘in any amount it considers appropriate’.
That is not to say there is any room for
maudlin sentiment about
adding to an accused’s punishment woes. The object of the Act
being to reduce crime by deterring people
from engaging in it, full
deprivation of the original proceeds, must robustly remain a primary
consideration.”
61
In
determining what would be an appropriate order, the High Court took
into account its factual conclusion that the shareholding
and
dividends did constitute “proceeds of unlawful activities”
within the meaning of section 18(1). In relation to the

shareholding and dividends, Squires J made it clear that both the
shareholding and dividends had derived from the intervention
of Mr
Zuma. In this, its conclusion cannot be faulted. It then
considered the “double counting” argument as follows:
“
So far as the ‘double
counting’ of the ADS dividends towards the present value of Thint
shares owned by third defendant [Nkobi
Investments] is concerned, it
is difficult not to feel some sympathetic attraction for the
argument advanced by Mr Singh [counsel
for the appellants]. But the
essence of the situation is that the dividends received are, in
effect, the purchase price that third
defendant had to pay for the
shares, that is, to repay the loan it raised from the holding
company plus interest. To accept such
exclusion of the purchase
price as a valid reduction of the value of the shares seems to me to
overlook the fact that the third
defendant has actually received
both shares and dividends as benefits from the payments to Jacob
Zuma. If it chose to use the
shares to pay the loan that it had to
raise to pay for the shares, that does not affect the fact that it
received both as the object
of acquiring an interest in ADS.”
62
Squires
J thus concluded that the full value of both the dividends and the
shareholding should be the subject of the confiscation
order. This
conclusion can only be subject to interference by this Court if it
constituted a misdirection or on the ground that
the amount
provided for in the confiscation order is disturbingly
inappropriate.
The
main argument of the appellants was that the resulting confiscation
order was disproportionate. Section 18 requires a court
to
determine an appropriate amount. This exercise requires a court to
determine an amount in the light of the direct relationship
between
the proceeds and the criminal activity concerned, as well as the
nature of the criminal activity and its closeness to
the purposes
of the Act. The question on appeal, as I have described above, is
whether the amount confiscated by the court is
disturbingly
inappropriate.
63
Clearly an amount that is disturbingly inappropriate would be
disproportionate and an appeal court would therefore interfere
with
such an order. It must be emphasised that care must be taken by an
appellate court, when applying this test, not to invade
the
legitimate area of discretion of the court that made the original
confiscation order. In considering whether the award in
the lower
court should be interfered with on appeal, it is necessary to
consider first whether the shareholding and dividends
flowed
directly from the crime of which the appellants were convicted.
I
have found that the benefits of the shareholding and the dividends
did result from Mr Zuma’s interventions on behalf of the
appellants. It is true that it is the third appellant, Nkobi
Investments, that has the direct interest in the ADS shareholding
as a result of its shareholding in Thint; but the indirect value of
that shareholding for reasons given above was a benefit both
to Mr
Shaik and to Nkobi Holdings. And although the benefit may be
indirectly held, its acquisition was clearly derived from
the
criminal activity of which the appellants were convicted.
Secondly,
for the reasons I have outlined, there can be no doubt that
corruption is a crime that is closely related to the purposes
of
the Act. Both our own Parliament and international law have
recognised the devastating effects of corruption on democratic
values and have also recognised the close relationship between
corruption and organised crime. These considerations suggest
that
the general deterrence purposes of the Act will be well served by
the order made by the High Court, as indeed the Supreme
Court of
Appeal also noted.
64
The close relationship between the acquisition of the shares and
the dividends and the criminal conduct of Mr Shaik does not
suggest
that it was disturbingly inappropriate for the High Court to have
ruled that the full value of the shares and the dividends
should be
confiscated. Nor can any cavil be directed at the manner in which
the High Court reached its conclusion.
For
these reasons, I am of the view that it has not been shown either
that the High Court acted unjudicially or that the order
it made
was disturbingly inappropriate.
Costs
This
application is closely related to the criminal proceedings.
Although the appellants have failed, it does not seem appropriate
to order them to pay the costs of the state. I therefore make no
order as to costs.
Order
The
following order is made:
The
appeal fails.
Langa CJ, Jafta AJ, Kroon AJ, Madala J, Mokgoro J, Nkabinde J,
Skweyiya J, Van der Westhuizen J and Yacoob J concur in the judgment
of O’Regan ADCJ.
*
For the Appellants: Advocate M Brassey SC, Advocate N Singh SC and
Advocate H Gani instructed by Hassan Parsee & Poovalingam
Attorneys.
For the Respondent: Advocate W Trengove SC and Advocate A Cockrell
instructed by the State Attorney.
1
There were eleven accused persons in the trial: Mr Shaik (the first
appellant in this matter) and ten companies. Only two of those
companies, Nkobi Holdings (Pty) Ltd (second appellant) and Nkobi
Investments (Pty) Ltd (third appellant) are parties to this appeal.

Mr Shaik was found guilty on another charge of corruption and also
on a charge of fraud, and the two corporate appellants were
also
found guilty on other charges, but these other charges are not
relevant to this appeal. See
S v Shaik and Others
2007 (1)
SACR 142
(D);
[2005] 3 All SA 211
(D) (High Court criminal
judgment). See also
S v Shaik and Others
[2007] ZACC 19
;
2008 (2) SA 208
(CC);
2007 (12) BCLR 1360
(CC) (Constitutional Court
criminal appeal judgment) dismissing Mr Shaik’s and the other
corporate applicants’ applications
for leave to appeal against
their convictions and sentence.
2
Section 1(1)(a) of the Corruption Act 94 of 1992 has since been
repealed and replaced by the Prevention and Combating of Corrupt
Activities Act 12 of 2004 (see section 36(1) of that Act, read with
the Schedule to the Act). Section 1(1)(a) provided as follows:
“
1(1)
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;
. . . .
shall be guilty of an offence.”
3
No confiscation order was made against these two companies. They
are therefore not parties to the present appeal.
4
Section 26 states:
“
(1) The National Director may by way of an ex parte
application apply to a competent High Court for an order prohibiting
any person,
subject to such conditions and exceptions as may be
specified in the order, from dealing in any manner with any property
to which
the order relates.
(2) A restraint order may be made—
(a) in respect of such realisable property as may be
specified in the restraint order and which is held by the person
against whom
the restraint order is being made;
(b) in respect of all realisable property held by such
person, whether it is specified in the restraint order or not;
(c) in respect of all property which, if it is
transferred to such person after the making of the restraint order,
would be realisable
property.
.
. . .”
5
Section 18 states:
“
(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.
(2) The amount which a court may order the defendant
to pay to the State under subsection (1)—
(a) shall not exceed the value of the defendant's
proceeds of the offences or related criminal activities referred to
in that subsection,
as determined by the court in accordance with
the provisions of this Chapter; or
(b) if the court is satisfied that the amount which
might be realised as contemplated in section 20(1) is less than the
value referred
to in paragraph (a), shall not exceed an amount which
in the opinion of the court might be so realised.
(3) A court convicting a defendant may, when passing
sentence, indicate that it will hold an enquiry contemplated in
subsection
(1) at a later stage if—
(a) it is satisfied that such enquiry will
unreasonably delay the proceedings in
sentencing the defendant; or
(b) the public prosecutor applies to the court to
first sentence the defendant and the court is satisfied that it is
reasonable
and justifiable to do so in the circumstances.
(4) If the judicial officer who convicted the
defendant is absent or for any other reason not available, any
judicial officer
of the same court may consider an application
referred to in subsection (1) and hold an enquiry referred to in
that subsection
and he or she may in such proceedings take such
steps as the judicial officer who is absent or not available could
lawfully have
taken.
(5) No application referred to in subsection (1)
shall be made without the written authority of the National
Director.
(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;
(b) subject to subsection (1)(b) or (3)(b) of section
21, adjourn such proceedings to any day on such conditions not
inconsistent
with a provision of the Criminal Procedure Act, 1977
(Act 51 of 1977), as the court may deem fit.”
6
Throughout this judgment this company shall ordinarily be referred
to as Thint to avoid confusion with the other Thomson-CSF companies
under discussion. For a fuller description see below at paras 14-5.
7
See
Shaik and Others v S
[2006] ZASCA 106
;
[2007] 2 All SA
150
(SCA) (SCA POCA judgment).
8
The judgment is reported as
S v Shaik and Others
[2006] ZASCA
105
;
2007 (1) SA 240
(SCA);
2007 (1) SACR 247
(SCA) (SCA criminal
appeal judgment).
9
See the Constitutional Court criminal appeal judgment, above n 1.
10
Id at paras 83-5 and 87(b).
11
The text of the letter reads as follows:
“
Dear Sir,
I would like to confirm hereby the content of our
previous discussions related to a cooperation between Thomson-CSF
and NKOBI Holdings
primarily in the Republic of South-Africa and
possibly abroad in any country where we could decide together to
cooperate further.
The following has been discussed and agreed in
principle pending the final approval by Thomson-CSF general
management:
1. Thomson CSF agrees to let NKOBI take a share in the
company they are decided to set in South-Africa, which share may
vary from
30 to 35% pending a final agreement with the other
potential shareholders. Furthermore, Thomson-CSF would be ready to
consider
letting Malaysian investors take an equity into the share
capital of the said company, thus reducing its share to under 50%.
2. The company’s name would have to be decided in
common and would reflect the link with the two main shareholders;
i.e. Thomson
CSF and NKOBI.
3. The two main shareholders would have a joint
management control of the company as per a scheme to be agreed upon
mutually.
4. With regard to the capitalization of the company,
Thomson-CSF would be ready to find an agreement with NKOBI allowing
for an
initial capital brought in by Thomson-CSF alone with a clause
providing the refund by NKOBI to Thomson-CSF of the value of NKOBI’s
share as per a scheme to be agreed upon mutually. In case Malaysian
investors enter the share capital of the company a new funding
scheme would have to be set up and agreed in common.
5. The company would then enter into agreements with
existing South-African companies such as, but not limited to,
Altech/UEC,
Plessey, Reutech, ATE, etc…in as for as needed for the
incoming programmes as already initiated by Thomson-CSF in the past
two
years.
6. This provisional agreement would stay confidential
until when a final agreement is formally signed between both
parties. No
mention of it should be made by either party without
the previous consent of the other party.
Should you agree that the above is a true reflection of
our discussions, I would suggest that we go together to Thomson-CSF
Paris
head office to finalize our agreement and from there to
Malaysia. As per our today’s telephone conversation, we could fly
to
Paris on Tuesday night.
Awaiting for your possible comments, I remain
yours sincerely
Pierre Moynot
Southern-Africa
Vice-President”.
12
See above at para 6.
13
Resolution 7.1 from the minutes of the meeting reads as follows:
“
7.1. ACQUISITION OF AN INTEREST IN ALTECH DEFENCE
SYSTEMS RESOLVED THAT, subject to the
7.1.1. Consent of Nkobi Investments (Proprietary)
Limited;
7.1.2. Reaching of a satisfactory agreement with the
Altech Group; and
7.1.3. Registration of a new company with the said
Altech Group as a vehicle therefor;
Thomson-CSF (Proprietary) Limited proceeds with its
investment in the business known as Altech Defence Systems.
RESOLVED
FURTHER THAT Nkobi Investments (Proprietary) Limited will employ its
best endeavors to obtain self-financing and/or self-financing
as far
as possible, of its share of the Altech investment and, in the event
of any shortfall therein, such shortfall shall be financed
by the
Thomson-CSF companies subject to the entry into a side agreement
between them and Nkobi Investments (Proprietary) Limited.”
14
The text of the letter reads as follows:
“
Dear Schabir,
I am glad to announce that a principle agreement has
been reached with Altech with regard to the sale of 50% of their ADS
business
to Thomson-CSF (Pty) Ltd. You will find attached copy of
the initialled JV agreement that has been negotiated and agreed
upon.
We shall receive, in the coming weeks, separate documents,
i.e. share sale agreement, shareholders’ agreement and sale of
business
agreement, that will be drafted by lawyers and based upon
the attached JV agreement. You will also find attached a proposed
timetable
of the events to take place before the closing date which
is scheduled for 19/12.
This means that latest by the 15/12/97, we must have
R21.25 million available on Thomson-CSF (Pty) Ltd.’s bank account.
Can you
confirm as soon as possible whether your share, i.e. R1.488
million through Thomson-CSF Holding (Southern Africa) (Pty) Ltd. and
R6.375 million direct, will be available or please contact me on
this topic.
In the meantime, I will need your possible comments on
the JV agreement, by latest on 3/10, so that we are able to keep
with this
proposed timetable, and by 20/10 I will need a power by
the shareholders of Thomson-CSF (Pty) Ltd., i.e. Nkobi and
Thomson-CSF
Holding (Southern Africa) (Pty) Ltd., to sign the final
agreements. I must also, for formal record reasons, recall you that
the
content of this JV agreement is covered by the NDA signed with
Altech which binds Nkobi as well.
Yours very sincerely,
Pierre
Moynot”.
15
The letter, dated 17 March 1998, reads as follows:
“
In my recent discussion with the Honourable Minister
Jacob Zuma Vice President of the African National Congress (ANC), he
is extremely
concerned with the conduct of the Thomsons-CSF group
operating in South Africa, and in particular the allegations made to
me by
yourself and other representatives of your group attributed to
our Honourable President Thabo Mbeki, with regards to our South

African business affairs.
Accordingly, the Vice President, the Honourable
Minister Jacob Zuma requests an urgent meeting with yourself in
Durban, South Africa
to address these concerns.
Kindly communicate with the writer, to arrange a
mutually convenient date for this meeting.
Your urgent response would be appreciated.
Yours Sincerely
Schabir Shaik
Executive
Chairman”.
16
This procedure may be contrasted with the procedure under chapter 6
of the Act, which provides for forfeiture of proceeds of crime
or
instrumentalities of an offence by way of civil proceedings that are
not dependent on the existence of criminal proceedings.
The chapter
6 procedure was considered by this Court in
Prophet v NDPP
[2006]
ZACC 17
;
2007 (6) SA 169
(CC);
2007 (2) BCLR 140
(CC) (
Prophet
)
and
Mohunram and Another v NDPP and Another (Law Review Project
as
amicus curiae
)
[2007] ZACC 4
;
2007 (4) SA 222
(CC);
2007 (6) BCLR 575
(CC) (
Mohunram
).
17
See section 18(1)(c) of the Act above n 5.
18
Id. The court also has the power, in terms of the same section, to
“make any further orders as it may deem fit to ensure the
effectiveness and fairness of the order.”
19
SCA POCA judgment, above n 7 at para 24. See also the comments of
Lord Steyn in
R v Rezvi
[2002] 1 All ER 801
(HL) at para 14
where he stated:
“
It is a notorious fact that professional and
habitual criminals frequently take steps to conceal their profits
from crime. Effective
but fair powers of confiscating the proceeds
of crime are therefore essential.”
20
SCA POCA judgment, id at para 24.
21
The text of section 18 is set out above at n 5.
22
The second limit stipulates that if it is shown that the proceeds of
crime as calculated in terms of section 18(2)(a) exceed the
“realisable amount” determined by section 20(1) of the Act, only
the realisable amount may be confiscated. It was not suggested
that
this provision had any application in this case.
23
See above para 16 and n 13.
24
See above para 17 and n 14.
25
In his evidence he stated that “normally his claim is correct or
was correct”.
26
See, for example,
Pitout v North Cape Livestock Co-operative Ltd
1977 (4) SA 842
(A) at 850C-D in which Corbett JA formulated
the question as follows:
“
The
question which arises accordingly is whether the undertaking, given
as it was during the course of uncompleted negotiations,
had, or has
been shown to have had, contractual force. Was the undertaking an
offer made,
animo contrahendi
, which upon acceptance would
give rise to an enforceable contract, or was it merely a proposal
made by the appellant while the
parties were in the process of
negotiating and were feeling their way towards a more precise and
comprehensive agreement? This
is essentially a question to be
decided upon the facts of the particular case.”
See also
CGEE Alsthom Equipments et
Enterprises Electriques, South African Division v GKN Sankey (Pty)
Ltd
1987 (1) SA 81
(A) at 92A-F; and
OK Bazaars v Bloch
1929 WLD 37
at 44 (relating to a sale of shares).
27
See
Titaco Projects (Pty) Ltd v AA Alloy Foundry (Pty) Ltd
1996 (3) SA 320
(W) at 335-8.
28
SCA POCA judgment, above n 7 at para 27.
29
Above n 15.
30
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para
15.
31
As the High Court noted:
“
Mr
Moynot, with charming Gallic candour, said that it was standard
practice in the armaments industry to cultivate the services
of such
people, although the rumours or information they provided always
needed careful assessment for their reliability. Moreover,
he said,
notwithstanding the existence of apparently impartial institutions
like tender boards, the ultimate choice in competitions
of this sort
was always made at a political level.”
High Court
criminal judgment, above n 1 at 167c-d; 230f-g.
32
SCA criminal appeal judgment, above n 8 at para 131.
33
We have on previous occasions been called upon to consider chapter 6
of the Act. See
Prophet
and
Mohunram
,
above n
16.
34
[2001] ZASCA 127
;
2002 (2) SA 1
(SCA) at para 19.
35
See Part VI of the Criminal Justice Act, 1988; sections 42-43 of the
Drug Trafficking Act, 1994; part III of the Terrorism Act,
2000.
See also Part 2 of the Proceeds of Crime Act, 2002 which replaced
the earlier provisions.
36
Phillips v The United Kingdom
case no. 41087/98, European
Court of Human Rights, final judgment (12 December 2001),
http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB8
6142BF01C1166DEA398649&key=2139&sessionId=7936765&skin=hudoc-en&attachment=true,
last accessed 22 May 2008.
37
R v Rezvi
, above n 19 at para 14.
38
[2001] UKHL 68
;
[2002] 1 All ER 366
at para 23.
39
See section 36(1) and section 39(1) of the Constitution.
40
Section 34 of the Constitution protects the right of access to
courts in the following terms:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
And section 35(3) of the Constitution
protects the right of an accused to a fair trial in the following
terms:
“
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.”
41
See section 39(2) of the Constitution, which requires a court, when
interpreting legislation, to “promote the spirit, purport
and
objects of the Bill of Rights.”
42
Section 18(1) is set out above at n 5.
43
The definition of “proceeds of unlawful activities” is set out
above at para 25.
44
Above n 38.
45
See
Giddey NO v JC Barnard and Partners
[2006] ZACC 13
;
2007
(5) SA 525
(CC);
2007 (2) BCLR 125
(CC) at paras 19-23;
S v
Basson
[2005] ZACC 10
;
2007 (3) SA 582
(CC);
2005 (12) BCLR 1192
(CC) at para 110;
Mabaso v Law Society of Northern Provinces and
Another
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC) at para 20.
46
See
Phillips v The United Kingdom
, above n 36 at para 34
where the Court held:
“
[T]he
purpose of the procedure . . . was to enable the national court to
assess the amount at which the confiscation order should
properly be
fixed. The Court considers that this procedure was analogous to the
determination by a court of the amount of a fine
or the length of a
period of imprisonment to be imposed on a properly convicted
offender.”
47
See
R v Mapumulo and Others
1920 AD 56
at 57.
48
See
S v Rabie
1975 (4) SA 855
(A) at 857D-E;
S v Letsolo
1970 (3) SA 476
(A) at 476-7; and
R v Myburgh
1922 AD 249
at
253.
49
See
S v Rabie
id;
R v Mapumulo
, above n 47.
50
For a consideration of the circumstances in which instrumentalities
of a crime will be confiscated, see
Mohunram
and
Prophet
,
above at n 16.
51
Kaufmann “Myths and Realities of Governance and Corruption” in
Lopez-Carlos
World Economic Forum Global Competitiveness Report
2005–2006
at 83,
http://www.worldbank.org/wbi/governance/pdf/2-1_GCR_Kaufmann.pdf,
last accessed 22 May 2008. For more information on the
extent of
corruption in the world and Africa, see Snider and Kidane “Combating
Corruption Through International Law in Africa:
A Comparative
Analysis” (2007)
40
Cornell International Law Journal
691
at 692-6.
52
For a discussion of this Act, see Williams and Quinot “Public
Procurement and Corruption: The South African Response”
(2007) 124
South African Law Journal
339.
53
[2000] ZACC 22
;
2001 (1) SA 883
(CC);
2001 (1) BCLR 77
(CC) at para
4.
54
43 ILM 37 (2004). The second paragraph of the preamble to the
United Nations Convention recognises “the links between corruption
and other forms of crime, in particular organised crime and economic
crime, including money-laundering”.
55
The Convention was ratified by South Africa on 22 November 2004.
See http://www.unodc.org/unodc/ en/treaties/CAC/signatories.html,
last accessed 22 May 2008.
56
Article 31(1) of the Convention provides:
“
Each State Party shall take, to the greatest extent
possible within its domestic legal system, such measures as may be
necessary
to enable confiscation of:
(a) Proceeds of crime derived from offences
established in accordance with this Convention or property the
value of which corresponds
to that of such
proceeds;
(b) Property, equipment or other instrumentalities
used in or destined for use in offences established in accordance
with this
Convention.”
57
Article 2 of the Convention provides the following definitions of
“property” and “proceeds of crime”:
“
(d) ‘Property’ shall mean assets of every kind,
whether corporeal or incorporeal, movable or immovable, tangible or
intangible,
and legal documents or instruments evidencing title to
or interest in such assets;
(e) ‘Proceeds of crime’ shall mean any property
derived from or obtained, directly or indirectly, through the
commission of
an offence”.
58
43 ILM 5 (2004).
59
On 11 November 2005. See
http://www.africa-union.org/Official_documents/Treaties_%20Conventions_
%20Protocols/List/African%20Convention%20on%20Combating%20Corruption.pdf,
last accessed 22 May 2008.
60
National Director of Public Prosecutions v Schabir Shaik and
Others
CC 27/04 Durban and Coast Local Division, 31 January
2006, unreported at 6.
61
Id at 10.
62
Id at 32-3.
63
Above para 66.
64
See SCA POCA judgment above n 7 at para 30.
*
*
Although
Ngcobo J sat in the case, ill health prevented him from
participating in the judgment.