How we nailed Shaik
June 09, 2005 Edition 3
Billy Downer
Lead prosecutor in the Schabir Shaik trial which ended yesterday when he was jailed for 15 years on each of two counts of corruption and three years on one count of fraud. Now Downer tells Special Writer Estelle Ellis.
The full story of the hunt to put Shaik in the dock.
Almost three years ago, a group of ordinary prosecu- tors and investigators came together in Pretoria to take on an extraordinary case.
Yesterday, as Billy Downer SC sat with his team in a restaurant at uShaka Sea World, a glass of white wine in hand and a plate of sushi before him, they had just secured an effective 15-year jail sentence for corruption- and fraud-convicted Schabir Shaik.
The men have probably never noticed but they always walked in the same formation to court: lead prosecutor Billy Downer SC in front, flanked by his second-in-command Anton Steynberg, followed by Santhos Manilall, with investigators Johan du Plooy and Isak du Plooy bringing up the rear.
Surprisingly, their mission was never to get a conviction. It was to bring their case before court, ask a judge to adjudicate and give Shaik a fair trial.
The fact that they got what prosecutors call a "full house" of convictions and a very stringent sentence, is a tribute to what Downer calls the "extraordinary dedication and passion" of his team.
It was almost two years from the day Downer got involved in the case to the day they first went to court.
Downer, who lives in Cape Town, recalls: "I was at a braai at a friend's house in February 2001. It was a Saturday night.
(Scorpions boss) Leonard McCarthy phoned me and said I must come to Pretoria. He said he had something I would like."
By then the director of public prosecutions at the time, Bulelani Ngcuka, had put together a team to investigate the arms deal. One of the central figures in that team was Downer's friend Gerda Ferreira.
Downer agreed to look at the "conflict of interest" part of the investigation, as it was mostly based on paperwork that would allow him to remain in his beloved Cape Town.
The work involved two characters whom Downer would get to know very well eventually: brothers Chippy and Schabir Shaik.
"We started looking at it, but we could not find much. We went looking with the expectation of finding nothing," Downer recalls. "Bulelani said: 'That's fine.'
"Then one rainy afternoon in April, I opened a file of Arthur Anderson's audit papers and I found a couple of e-mails that talked about a bribe and French arms company Thomson.
"Months after that we found the first payments of school fees by Shaik on behalf of Deputy President Jacob Zuma.
"After we found those two or three payments, we jumped up and down - we had a case of corruption, we told each other. What we did not know was that there were 235 more payments to be found.
"By then we knew of a woman called Sue Delique, but we thought she was in France. Eventually one of our investigators, Graham Dawes, tracked her down. We went to talk to her, but she would not give us the fax. In July that year she phoned. 'I have the fax' she said.
"We went to see Sue in her tiny little cottage, and there were cats walking all over the fax. Sue and I are both cat lovers, but Gerda went berserk. I'm sure she was scared a cat was going to pee on the fax. The minute we got it out from under the cats, and I saw it, I knew that what was written in the fax was the truth."
This encrypted fax would later form the backbone of the conviction brought out by Judge Hilary Squires on a charge of corruption.
Squires found that the fax was a true reflection of a bribe agreement with Thomson, brokered by Shaik and agreed to by Zuma.
"During the Hefer Commission (into whether Ngcuka had been an apartheid spy), the National Prosecuting Authority was accused of leaking information to the press.
"Not a single press leak came from our team. The papers from which the first story about the fax was written were attached to Shaik's own papers when he took us to court about the searches," Downer says.
"A feature of this case," he continues, "was that we perfected the art of doing the impossible. We broke all old prosecutorial standards. Where we used to saying, 'We can't do this. It's too expensive.' We now said, 'Let's try.' "
In October, senior special investigator Johan du Plooy, a veteran of the arms deal investigation, joined the team again, this time to organise simultaneous searches of premises in Durban, France and Mauritius.
These searches took place on October 9 under great secrecy, with Du Plooy keeping a watchful eye in Durban, Downer going to Mauritius and Ferreira to France.
"We never before thought to do things this way," Downer says.
"When I knew what had to be done, I said 'I want Johan and nobody else.' "
"Yes," Steynberg interjects, "he stamped his little feet and it all just happened."
Isak du Plooy, no relation to Johan du Plooy, was appointed to help Downer when they started questioning potential witnesses.
Fresh from the Scorpions academy, Isak "miraculously" got together all the information they needed.
It was only later that Downer met Shaik, whom he says always "treated me civilly".
In August 2003, just before Ngcuka was to give his controversial press conference announcing that Shaik would be prosecuted and Zuma would not, Steynberg was brought on board.
"There was a concern that because of Billy's involvement in the searches in Mauritius, Billy might be asked to give evidence or be barred from continuing (with the prosecution) at all ... that is why I was asked to join," Steynberg says.
Steynberg brought Santhos Manilall on board, who would later be credited for keeping the court documents in the correct order and for his analysis of the court record.
"Once I got involved," Steynberg says, "there was no turning back. The first thing I did was to suggest that we needed an independent auditor. We thought they would not approve it because it would be too expensive, but they did."
"When they said we could have an auditor," Downer says, "I immediately said, 'I want Johan van der Walt.' ... We left them alone to do their job. We gave them access to the safe and said, 'Make up your own minds.' "
It would only be two years later - in September 2004 - that Downer could finally tear himself and his team away from their other work to pay their full attention to the job at hand.
"I think that was the most difficult part," Downer says. "We only really did this part-time until September. I had to run the Asset Forfeiture cases and the plea bargaining pilot project in Cape Town."
One of Steynberg's other tasks was to secure the evidence of David Wilson, former employee of the Malaysian construction company Renong, and one of the integral parts of their case was to prove that there was a corrupt relationship between Shaik and Zuma.
"Wilson is a man of such integrity," Steynberg says. "He was truly offended by what happened. He was such a precise and meticulous person with no ulterior motives. I was delighted when his affidavit was admitted and became an integral part of Count 1.
"At the beginning of the trial I said to the two Du Plooys, 'Get ready. We must keep the case going.' The smooth running of the prosecution's case is all thanks to them."
About his love of Latin, and his fondness for using quotes in the ancient language during the trial, Downer says: "I majored in Latin. I would much rather do Latin than law - if only it paid better."
And then there was the day before Squires gave judgment on the admissibility of the fax.
"We went on this lovely country outing," Downer says. "And it was terrible. We were all sitting there all tense and crabby."
Once the fax went in, it was all plain sailing from there.
"But Judge Squires kept us guessing right up to the end. It is the mark of a remarkable judge."
It was shortly before the trial started that corruption expert Guido Penzhorn was asked to come on board as a consultant.
"Guido gave us great comfort," Downer says. "We could push argument on all the side issues his way. He also gave us very good advice on the further particulars we had to furnish to Shaik.
He was the first person from the outside who said we had a good case. That was really good news. Here we had an objective opinion. There were even people in the National Prosecuting Authority who doubted us. I would say his most valuable input was that he gave this sense of confidence," Downer says.
"This case," Steynberg adds, "proves what can be done if the prosecution is properly staffed and funded."
"What kept us going," Downer adds, "was a commitment to what we were doing."
The greatest headache during the trial was to keep all of the 155 000 documents in order and safe. "We never lost a single document," Downer says.
The other was to get witnesses to court, on time, and to have them stay there while Downer's off timing played havoc with schedules.
But as Shaik was sentenced to 15 years' imprisonment, Downer took no pleasure in having brought about his fall.
"I look at these things from an intellectual point of view," he says.
"If the crime and the sentence are in relation to each other, then what happened is correct."
Then, with a twinkle in his eye he tells of how, at a time of great pressure, he accidentally pulled out the plug of Steynberg's computer.
"Anton suddenly went into a frantic scramble trying to recover his document. I just said 'Oops'. What else could I do? It all worked out well in the end."
