Eighteen months after the fact and in a terse one-pager, Western Cape Judge President John Hlophe essentially told the State to buzz off and go read former ANC MP Bongani Bongo’s defence attorney’s arguments.

This was in response to the National Prosecuting Authority’s (NPA’s) filing a section 316/319 application after Hlophe’s section 174 acquittal of Bongo on serious charges of bribery.

Hlophe, in his “Reasons for Judgment”, released last month (5 September), essentially blew off the NPA, suggesting that anyone looking for answers or further reasons for his decision should simply consult “the Heads of Argument by the Respondent’s [Bongo’s] counsel, Mike Hellens”.

Bongo has subsequently been suspended by the ANC and faces further criminal charges in a case which has served, as colleague Rebecca Davis observed, as “a shocking illustration” of the potential for corruption around the ANC’s “willing buyer, willing seller land reform process”.

The alleged swindle took place while Bongo was the head of legal services at the Mpumalanga Department of Human Settlements.

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Commenting this week on Hlophe’s perfunctory response to the NPA’s application, Alison Tilley, Judges Matter coordinator, said: “It seems to us unreasonable for the outcome to arrive 18 months later. Worse still, for that outcome to be all of one page.”

Judge Hlophe’s conduct in this matter, “in our view”, fell “woefully short of acceptable judicial standards, not least those of a judicial leader”, she said.

The NPA filed its application a month after Hlophe had found there was not enough evidence for Bongo to face the charges.

Tilley said that article 10 of the Judicial Code of Conduct required judges to act with diligence, prioritising their judicial duties above all else and disposing of their cases expeditiously.

This was reinforced by the norms and standards for the performance of judicial functions, which required criminal cases to be decided without unreasonable delay.

Hlophe slams the door with double jeopardy

Bongo, an ANC MP, had been accused of attempting to influence advocate Ntuthuzelo Vanara, the evidence leader of Parliament’s inquiry into Eskom. Vanara had alleged that Bongo had offered him a bribe to collapse or delay the process.

At his trial, he pleaded not guilty and denied he had told Vanara to “name his price” to cooperate. The incident took place a week before former president Jacob Zuma appointed Bongo as state security minister.

In his reasons, Hlophe said that should the State be successful, Bongo could not be retried “in this court” [Western Cape High Court]. Besides, added the Judge President, if the Supreme Court of Appeal did order that a trial start anew before a different court, Bongo could use the defence of autrefois acquit, or double jeopardy.

Case closed.

Political ramifications

Back in February 2021, after Bongo’s victory, the State applied to have nine questions of law referred to the Supreme Court of Appeal (SCA) for a determination as Hlophe had neither handed down a judgment nor provided reasons for his decision.

Advocate Thersia du Toit-Smit, for the State, contended that Hlophe had wrongly applied the law in the matter.

Hlophe, that same month, dismissed the application.

As Daily Maverick’s Stephen Grootes pointed out at the time, the political implications of Hlophe’s ruling “could be immense”.

“The ruling lands like a grenade in a set of dynamics involving the excruciating debate over the ANC’s ‘step aside’ resolution, the recent attacks on the judiciary, and more importantly, the National Executive Committee’s (NEC’s) position on the corruption case against ANC Secretary-General Ace Magashule,” noted Grootes.

It is for this reason that Hlophe’s refusal to engage with matters of law, instead simply referring to documents filed by Hellens, should not slip between the cracks.

Hlophe had reckoned that “the difficulty with Mr Vanara’s evidence is that having a discussion about delaying or collapsing a parliamentary process is not unlawful in terms of the act”.

It’s only a crime if you offer a bribe

He said the act was “very clear that only when an offer of gratification is made in exchange for a proscribed act, ie, the delay or collapse of the Inquiry Committee, in favour of Mr Vanara or any other person, only then it becomes a crime”.

Grootes highlighted that a legal finding that Bongo did not offer money did not prove that the member of Parliament, who is close to Jacob Zuma, was innocent of attempting to derail the Eskom inquiry.

A snippet of dialogue from the evidence presented before Hlophe during Bongo’s trial in that regard is enlightening.

Hlophe to Vanara: “If I come to you and ask you to collapse this, it’s not wrong. It becomes a problem when it comes to gratification or payment. Did he offer you any fixed amount?”

Vanara to Hlophe: “There was no fixed amount. He [Bongo] said, ‘Name your price’.”

Hlophe to Vanara: “Were banking details for the payment shared or did you have to put the money in a boot?”

Vanara replied that no details for a financial drop-off were discussed.

The ‘just shooting the breeze’ defence

Bongo’s defence all along had been that his “cordial interactions” with Vanara had been sparked as “we [are] both individuals from [the] advocacy profession” and that the two men “effortlessly began to interact on issues of mutual interest, in particular, legal issues that may have a bearing on the execution of our duties in Parliament”.

Vanara, Hlophe found in his judgment, had not been “credible” and was a single witness.

In applying for the section 174 acquittal after the State had brought its case, Hellens said the State had not proved Bongo’s guilt beyond reasonable doubt.

Later, Hellens said that Hlophe had not made any mistakes in granting the discharge and that the State was “trying to get an appeal on the facts of the case through the back door”.

These were also Hlophe’s words in his “Reasons for Judgment” when he rejected the application, claiming it was “a disguised appeal against the section 174 acquittal”.

Bongo was suspended in August 2021. In April 2022, he was charged alongside 11 co-accused on multiple counts of corruption and money laundering involving the purchase of two farms. The real ownership and true sale of the properties are alleged to have been misrepresented.

Bongo and his co-accused briefly appeared in the Nelspruit Commercial Crimes Court for pre-trial purposes on Friday, 1 April 2022 where a trial date was set for 8-25 November. DM