Schabir shaik & others v state cause CCT 86/06 [2008] ZACC

Case Caption:

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

Case URL:

http://www.saflii.org/za/cases/ZACC/2007/19.html

Summary Significance:

For every civil recovery suit in which the constitutional right to property and the protection against arbitrary deprivation is invoked, the Courts must apply the proportionality test between the offence committed and the value of the property to be confiscated.

Applicable laws:

The applicable laws are Section 51(2)(a)(i) of the Criminal Law Amendment Act (Amendment Act) and Section 18 of the Prevention of Organized Crime Act (POCA).

Brief Facts:

On 2 June 2005 the Durban High Court convicted Mr Shaik on two counts of corruption and one of fraud. The companies with which he was associated were all convicted of corruption, four were convicted of fraud and two of money laundering. The charges related to payments that Mr Shaik and the companies had made to Mr Jacob Zuma, when he was the MEC for Economic Affairs and Tourism in KwaZulu-Natal and later when he was the Deputy President of the Republic of South Africa, to secure his political influence for their financial benefit. This included an arrangement facilitated by Mr Shaik in terms of which a payment was made by a director of Thint (Pty) Ltd, Mr Alain ThĆ©tard, to Mr Zuma in connection with a transaction regarding the acquisition of arms. Mr Shaik was sentenced to an effective fifteen yearsā€™ imprisonment and the companies to an array of fines. Mr Shaik and the companies appealed to the Supreme Court of Appeal against the convictions and sentences. On 6 November 2006 the Supreme Court of Appeal dismissed the appeals against conviction and sentence and confirmed the High Courtā€™s judgment. Following the conviction, the High Court granted an order authorizing the confiscation of various proceeds of the unlawful activities in terms of the Prevention of Organised Crime Act 121 of 1998 (POCA). The Supreme Court of Appeal partially upheld the appeal in respect of the confiscation. The Applicants therefore moved to the Constitutional Court to challenge the sentences imposed, on the ground that the High Court and Supreme Court of Appeal failed to give proper consideration to Mr Shaikā€™s personal and socio-economic background, in particular the fact that he was a victim of the discriminatory system of apartheid, and his role in the struggle against this system. They also argued that the minimum sentence legislation in terms of which Mr Shaik was sentenced was not applicable because the payments had started before the legislation had come into force.

Issues for Determination:

I.Whether an application to introduce new facts in the confiscation proceedings that had not been raised at the criminal trial could be entertained.
II.Whether certain of the benefits that became the subject of the POCA proceedings had been obtained as a result of one Appellantā€™s position of influence
III.Whether the confiscation was proportionate in light of the decisions of the Supreme Court of Appeal and the High Court.

Holding:

The application to introduce new evidence was dismissed, as much of the evidence in question was not undisputed, and the evidence was also irrelevant to the issues to be decided by the Court. The Court held that the Applicantsā€™ submissions on the alleged unfairness of the trial based on the failure to charge Mr Zuma and/or Thint and the alleged prosecutorial misconduct, bear no prospects of success. The decision to charge Mr Shaik and the companies, without also charging other parties possibly suspected of being involved in the same offences, did not constitute an irregularity that rendered the trial unfair. Nor did the conduct of the lead prosecutor, which accorded with the Constitution and the National Prosecuting Act 32 of 1998. The Court furthermore held that the Applicantsā€™ submissions concerning the sentences bear no prospects of success. The High Court and Supreme Court of Appeal properly considered Mr Shaikā€™s history and other personal circumstances. The suffering of past discrimination is not a general excuse for crime committed after the dawn of democracy. The minimum sentencing legislation was also clearly applicable to Mr Shaikā€™s sentence of imprisonment. An appeal against the convictions and sentences does not bear reasonable prospects of success. It would thus not be in the interests of justice to grant leave to appeal. The Court unanimously held that the Applicantsā€™ submissions raise a constitutional issue. POCA must be interpreted in conformity with the Constitution, which provides that no one may be arbitrarily deprived of his or her property. The Court held that the submissions cannot be said to bear no reasonable prospects of success. Accordingly, it concluded that it is in the interests of justice for the application for leave to appeal against the confiscation order to be granted.

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