“… corruption is inconsistent with the rule of law and the fundamental values of the Constitution …” – Shaik conviction confirmed

This quote pretty much encapsulates the approach taken by the Supreme Court of Appeal in its judgment which it handed down earlier today in the matter of Schabir Shaik v The State.  The Court dismissed the appeals Shaik filed with the Court a short while ago, confirmed his conviction for corruption and left Shaik facing prison for at least 15 years.

Shaik headline

This decision has had varied responses from parties on all sides.  The Democratic Alliance has declared this decision to be of great significance for South Africa and quite possibly the beginning of the end for former deputy president and, arguably, budding president, Jacob Zuma.  Zuma’s prosecution was recently struck off the court roll in Pietermaritzburg after the High Court found the prosecution to be ill-prepared to continue the prosecution.  There is now a strong suggestion that the State is in a better position to continue its efforts to prosecute Zuma on the basis of what has been regarded as a "generally corrupt relationship" both the Durban High Court and Supreme Court of Appeal have found to have existed.

This, of course, potentially changes the political landscape considerably.  If Zuma is prosecuted and convicted then it will remove the likelihood of him running for president in 2008/2009 and restore confidence to the market that the rule of law prevails in South Africa.  A big concern when Zuma’s corruption trial stalled was that this would be the end of an efforts to prosecute Zuma where his former business associate, Shaik, had been found guilty of corruption and where Zuma had been found to be a knowing party to that unlawful behaviour.  This decision by the highest court in South Africa for non-constitutional matters affirms the rule of law and the determination of the judiciary not to tolerate corruption.  The following passage, in particular, is a powerful expression of this determination:

The seriousness of the offence of corruption cannot be overemphasised. It offends against the rule of law and the principles of good governance. It lowers the moral tone of a nation and negatively affects development and the promotion of human rights. As a country we have travelled a long and tortuous road to achieve democracy. Corruption threatens our constitutional order. We must make every effort to ensure that corruption with its putrefying effects is halted. Courts must send out an unequivocal message that corruption will not be tolerated and that punishment will be appropriately severe. In our view, the trial judge was correct not only in viewing the offence of corruption as serious, but also in describing it as follows:

‘It is plainly a pervasive and insidious evil, and the interests of a democratic people and their government require at least its rigorous suppression, even if total eradication is something of a dream.’

It is thus not an exaggeration to say that corruption of the kind in question eats away at the very fabric of our society and is the scourge of modern democracies.  However, each case depends on its own facts and the personal circumstances and interests of the accused must always be balanced against the seriousness of the offence and societal interests in accordance with well-established sentencing principles.

If anything, this judgment is significant because it re-establishes our confidence in our judiciary.  Regardless of the popularity or political influence of the parties involved, our senior judges will make the correct finding in the circumstances.  This is a tremendously important thing because it means that regardless what may happen in the lower courts, the judges tasked with the leadership of the judiciary as a whole are properly seen as the protectors of our Constitution and the rule of law.

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