Judge David Makhoba ruled in the Gauteng Division of the High Court in Pretoria on Friday, 2 December that former Bosasa COO Angelo Agrizzi would be tried separately from his co-accused in his corruption and fraud case.

Agrizzi’s co-accused are former Department of Correctional Services commissioner Lindi Mti; former Correctional Services CFO Patrick Gillingham and former Bosasa CFO Andries van Tonder.

Former Bosasa COO Angelo Agrizzi (centre) former Correctional Services CFO Patrick Gillingham (left) and former Bosasa chief financial officer Andries van Tonder (right) after their appearance at the Specialised Commercial Crimes Court in Pretoria on 5 July 2019 (Photo: Gallo Images / Phill Magakoe)

Former Correctional Services commissioner Linda Mti. (Photo: Gallo Images / Netwerk24 / Deaan Vivier)

The case has been repeatedly delayed due to Agrizzi’s ill health and Judge Makhoba said the ongoing delays could prejudice his co-accused.

Section 157(2) of the Criminal Procedure Act of 1977 reads:

“Where two or more persons are charged jointly, whether with the same offence or with the different offences, the court may at any time during the trial, upon the application of the prosecutor or of any of the accused, direct that the trial of any one or more of the accused shall be held separately from the trial of the other accused, and the court may abstain from giving judgment in respect of any of such accused.”

Agrizzi was arrested on 5 February 2019 and released on bail. The other three accused were also given bail. Agrizzi had a heart attack in October 2020 and was in intensive care at the Life Fourways Hospital until 7 December that year. 

Read more in Daily Maverick: Ailing former Bosasa COO Angelo Agrizzi’s chances of survival ‘less than 30-40%’, court told

Agrizzi was permitted by the court to appear virtually due to his ill health, while his co-accused appeared physically in court. In September 2023, Makhoba referred Agrizzi for mental evaluation to determine his fitness to stand trial.

The court was informed that the mental evaluation report was not yet ready and that the waiting period for an evaluation for an accused person who was in custody was usually 18 months.

‘Lost consciousness’

Handing down judgment, Makhoba stated: “According to medical experts who testified in this court, Agrizzi cannot concentrate for more than 20 minutes. Indeed, during these proceedings, the court had to take numerous adjournments to enable Agrizzi to recuperate. In some instances, Agrizzi lost consciousness during the proceedings.

“At this stage of the proceedings, no one knows when Agrizzi will fully recover. It is further my view that it is not feasible but prejudiced for the other three accused to be in the same trial with Agrizzi. The State will also be prejudiced for failing to finalise the matter speedily.”

The judge underlined that the decision to separate trials was discretionary and that the principle test was whether it was probable that the accused would suffer prejudice if a joint trial took place.

He said the delays caused due to Agrizzi’s health had a negative impact on the trial involving the other three accused and said that in “our law, justice delayed is justice denied”.

“The charges against all accused are very serious and the trial might be protracted. The only prejudice might be on the witness who may have to give the same evidence in two different courts,” Makhoba found.

The case against Agrizzi and his co-accused relates to four tenders worth R1.8-billion which the Department of Correctional Services awarded to Bosasa and its subsidiaries between August 2004 and 2007.

The tenders were for rendering catering and training services, installing CCTV cameras and perimeter fencing and supplying a television system and monitoring equipment.

Agrizzi was also charged alongside former ANC MP Vincent Smith in a separate corruption and fraud case.

Read more in Daily Maverick: Angelo Agrizzi’s loan of over R600,000 to ANC MP Vincent Smith interrogated at State Capture inquiry

In July 2021, the Specialised Commercial Court sitting at the Palm Ridge Magistrates’ Court granted the State’s application for Agrizzi and Smith to be tried separately.

Smith faces 27 counts of fraud, corruption and money laundering. He will appear for a pre-trial hearing on 23 February next year. DM