THE revelation by Judge Hilary Squires, who pronounced the judgment and sentence in the fraud and corruption case against the Durban-based businessman Schabir Shaikh in the Durban High Court in June last year, that he had never used the expression a "generally corrupt relationship" in his judgment to describe the relationship between Shaikh and Deputy President of the African National Congress Jacob Zuma has some delicious ironies that promise unexpected twists in the ongoing Zuma saga.
It was this judgment, in which almost all reports refer to his use of these three words, which led President Thabo Mbeki to sack Zuma as Deputy President on June 14, 2005. On June 20, the National Prosecuting Authority, with which Zuma has a fraught relationship, announced its decision to prosecute him on two charges of corruption. The three words, "generally corrupt relationship", in due course became part of South African political folklore. On September 20 this year, the corruption case against Zuma was "struck off the rolls" by the Pietermaritzburg High Court, which refused the prosecution more time to prepare (Frontline, December 1, 2006).
On November 6, the Supreme Court of Appeal (SCA) dismissed the appeal by Shaikh against the judgment of the High Court and upheld his conviction and sentence. The SCA also cited the three words in its ruling. Judge Squires' apparent intervention five days later led to some speculation about whether the judges had read the judgment that they were upholding.
His intervention disclaiming that he used the three words appeared in the form of a Letter to the Editor in Weekender, a sister publication of the Johannesburg-based financial daily Business Day, on November 11. It has since transpired that he did not write a Letter to the Editor. In fact, the letter was a personal one to the legal correspondent of the paper that drew attention to an e-mail Squires had sent several weeks earlier to the Editor, which made the same point. He wrote this letter on October 10.
On November 14, "in response to media reports regarding the judgment in S vs Shaikh and Others, which have pointed out that the SCA erred in ascribing the words `a generally corrupt relationship' to the trial court", the registrar of the SCA issued a clarification, the substantive parts of which are:
(i) The misattribution did not occur in the SCA's judgment in the criminal appeal. The quote is to be found only in the introduction to the court's subsidiary civil judgment on the forfeiture of Shaikh's assets. (ii) As in the case of all appeals, the SCA made its own independent findings. They are based on an exhaustive review of the evidence and the record of the trial court - this is apparent from the SCA's extensive judgment. (iii) The court found in the context of the corruption charges that the evidence established a "mutually beneficial symbiosis" between Shaikh and Zuma.
Here is fresh matter for more political and linguistic analysis - the difference between the expression a "generally corrupt relationship", which Judge Squires says he never used, and a "mutually beneficial symbiosis", which the SCA confirms the judge did use.
To complete the story, the three words appear thus in the ruling by Judge President of the SCA Craig Howie on the forfeiture of Shaikh's assets to the state, as cited in Business Day:
"Between 1996 and 2002 Shaikh and Mr. Jacob Zuma engaged in what the trial court (Squires) appropriately called `a generally corrupt relationship' which involved frequent payments by Shaikh to or on behalf of Zuma and a reciprocation by Zuma in the form of the bringing to bear of political influence on behalf of Shaikh's business interests when requested to do so."
In the context of larger political battles in the South African establishment, in which Zuma is a key player, the narrative and its chronology have political implications. The SCA's dismissal of the Shaikh appeal confirming the observation by the trial court opens the door for a renewal of the corruption charges against Zuma. As the SCA Registrar clarified: "The trial court's view of the `symbiosis' between Mr. Zuma and Mr. Shaikh was confirmed by the SCA in various parts of its judgment, which ultimately conveyed that on the evidence in this case an overall corrupt relationship existed.
"Self-evidently the case was one against Mr. Shaikh and not one against Mr. Zuma. The judgment necessarily had to deal with the relationship between Mr. Shaikh and Mr. Zuma on the evidence presented in this case, and does not pre-empt any finding that may subsequently be made in respect of another accused in another trial."
It is to be seen what political costs are to be borne, and extracted, by the South African people if any finding is "made in respect of another accused in another trial" and what political implications this will have for the battle for succession in South Africa.
M.S. PrabhakaraCOMMents
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