South Africa

South Africa

Analysis: The Zuma graft case and the question of intention

Analysis: The Zuma graft case and the question of intention

Former president Jacob Zuma is due to make his first appearance in the Durban High Court on Friday, to face charges of racketeering, corruption, money laundering and fraud. One factor complicating Zuma’s defence is the fact that the man from whom Zuma allegedly received bribes – Schabir Shaik – was convicted of corruption in 2005. Zuma can’t argue that he wasn’t paid by Shaik, so his defence may rest heavily on the question of why the former president thought he was being treated so generously by his benefactor. By REBECCA DAVIS.

When National Prosecuting Authority head Shaun Abrahams announced in mid-March that the prosecution of Jacob Zuma would go ahead, he revealed something significant about Zuma’s likely defence.

Mr Zuma, said Abrahams, “records that he lacked the requisite intention to commit any of the crimes listed in the indictment”.

At the heart of the charges against Zuma are payments made by his close ally Schabir Shaik to him between 1995 and 2005.

Here’s the rub: Zuma cannot dispute that Shaik did indeed make many of these payments to him, because Shaik had already admitted to making the majority of 238 payments to Zuma between 1995 and 2002 in his own 2005 corruption trial. Zuma can only argue that his intention in receiving the payments was not corrupt.

Shaik tried to make the same argument in 2005, and failed. For this reason the judgment in the Shaik case, penned by Judge Hilary Squires, is worth revisiting – not least for Squires’ occasional amusingly waspish tone.

The state had argued that the payments made from Shaik to Zuma constituted a form of retainer, and were not payments for any particular act or service.

There is very little, if any, dispute over the actual payments made over the period alleged by the various accused to or for the benefit of Jacob Zuma,” Judge Squires wrote.

All but a small number were admitted. Some were explained as being misunderstood, and two categories of others as being contributions to the ANC, and not payments to or for Zuma.”

Shaik’s claim was that the payments were made not in the hope of receiving any reciprocal benefit from Zuma, but out of friendship and altruism. He further claimed that the intention was that Zuma would repay the money when he was able.

One of Judge Squires’ tasks was to determine whether this could reasonably be true – or whether the payments were made “with the intention of influencing the recipient of the benefit to perform or disregard his duty”.

If the latter was found to be plausible, and had Zuma knowingly complied with Shaik’s intention, both Shaik and Zuma would have contravened the Corruption Act – though Zuma was not on trial alongside Shaik.

Determining intention in law is often tricky. Squires noted that in cases like these, the intention to bribe would usually be expressed physically, by some statement or action.

But it may also be implied by conduct,” he wrote, “as long as the conduct is clear enough to be recognised as such a statement or offer.”

When Zuma intervened to assist Shaik’s business interests in involvement with the arms deal, Shaik argued that Zuma did so as an act of friendship – and “nothing to do with the R343,724-odd that up to then had been paid to or on behalf of Zuma since early 1997”, Squires records drily.

Shaik also claimed that he took over Zuma’s financial management out of concern that Zuma would abandon his political career due to debt – a suggestion Zuma had allegedly made around 1997. Shaik thus painted his assistance to Zuma as motivated by the country’s greater good, because “Zuma was the one senior member of the ANC who could make an impact on the Inkatha Freedom Party in the preservation of political stability”.

Shaik’s explanations for individual payments often strained credulity. In one case, for instance, he argued that a payment of R140,000 was “the sum of cumulative donations” to the ANC to cover Zuma’s accommodation rental. As such, it was not a direct payment to Zuma but rather a political donation to the ANC.

It was a story that Squires described as having “the hallmarks of an ex post facto invention”.

Other pieces of evidence given by Shaik could not be directly contradicted, however. There was a meeting with the French arms dealers in 1998 at which Zuma was said to have been present – but only at the end, when business was concluded. Another meeting involving Zuma was flatly denied by Shaik.

Some evidence was more clear-cut: such as a letter on record from Shaik to Zuma in 2000 asking Zuma to co-ordinate a meeting between erstwhile Safety and Security Minister Steve Tshwete and a potential business partner of Shaik’s.

Shaik’s claim was that he approached Zuma with this request “not because of any personal connection with Zuma, but because Zuma was the person in government responsible for co-ordinating co-operation and inter-departmental activities between different ministries”.

Squires rubbished this idea:

There was no evidence whatever that established such a function in Zuma.”

Ultimately Squires accepted the evidence presented in at least five incidents as proving that Zuma “did in fact intervene to try and assist Shaik’s business interests”.

That was not the end of it, however: the essential issue, wrote the judge, was “the existence of a causal link between Shaik’s admitted payments to Zuma and this sort of assistance by Zuma”.

Squires ultimately found that the idea that Shaik assisted Zuma purely out of friendship, and vice versa, was not credible. In coming to this conclusion, the judge pointed to Shaik’s boasting of his connection with Zuma; his enabling Zuma to live well beyond his means, and the evidence of a Shaik employee that he would occasionally show irritation at paying Zuma’s expenses and decline to cover them for a short period.

Beyond this, the judge simply felt that Shaik was too astute a businessman to pick up the tab for Zuma in this way and get nothing back in return.

In our view no sane or rational businessman would conduct his business on such a basis without expecting some benefit from it that would make it worthwhile,” wrote Squires.

As for Zuma?

Though he was not on trial, the judge concluded:

If Zuma could not repay money, how else could he do so than by providing the help of his name and political office as and when it was asked, particularly in the field of government-contracted work, which is what Shaik was hoping to benefit from.”

The Squires judgment survived appeals all the way to the highest court in the land. If Zuma’s lawyers intend to show that Zuma was ignorant of the intention with which Shaik paid him money – and that Zuma in turn assisted Shaik out of no more sinister intention than friendship – then they will need to present a far more convincing case than that managed by Shaik’s lawyers in 2005. DM

Photo: South African businessman Schabir Shaik leaves the Durban High Court after judgment in his fraud and corruption case in Durban, South Africa, Thursday 02 June 2005. EPA/STR

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