Zizi Kodwa and Jehan Mackay at Palm Ridge Commercial Crimes Court on 3 October 2024 in Gauteng, South Africa. Former minister Kodwa was arrested over State Capture-related corruption charges in June. (Photo: Gallo Images / OJ Koloti) 
Proceedings lasted less than 15-minutes on Friday, 1 November 2024, as the Palm Ridge Specialised Crime Court heard that the Gauteng Director of Public Prosecutions’ deputy director Andrew Chauke had withdrawn corruption charges against Zizi Kodwa and Enterprise Outsourcing Holdings executive Jehan Mackay.
State prosecutor Neville Mogagabe read Chauke’s decision “that the charges against both the accused should be withdrawn. As a result the State is withdrawing the charges against both accused.”
Read more about Chauke here: State capture prosecutor Andrew Chauke faces suspension and inquiry into fitness to hold office
Both accused had submitted legal representations to drop State Capture Inquiry corruption charges.
However, later on Friday, the Office of the National Director of Public Prosecutions (NDPP), Shamila Batoyi, announced that it planned to review Chauke's decision, stating that the NDPP could do so in terms of the constitution, "after consultation with the relevant DPP and after taking representations within a specified period from the accused person; the complainant; any other person or party whom the NDPP considers to be relevant."
"The NDPP will review the decision in line with the above stated legal framework and communicate the decision accordingly," said spokesperson Mthunzi Mhaga, adding that the office had received a letter from the Directorate for Priority Crimes Investigation (the Hawks) requesting the review.
Chauke's decision to discharge of Kodwa and Mackay comes after nine years. In 2015 and 2016, Enterprise Outsourcing Holdings and Mackay made R1.68-million in cash payments for Kodwa, according to former Chief Justice Raymond Zondo. In his state capture report report Zondo recommended that President Cyril Ramaphosa “consider” Kodwa’s position concerning the “debts” he owed to Mackay, who was accused of bribing politicians and paying donations to the ANC to win lucrative government contracts.
During last month’s court appearance Kodwa’s legal representative Zola Majavu underlined that having read the 1,351-page docket and charge sheet the State’s case was “palpably weak”.
Welcoming the Director of Public Prosecutions’ decision, Majavu said: “I think it is about time for my client to pick up the pieces and rebuild his life.”
Ian Small-Smith, Mackay’s lawyer, told Daily Maverick: “Mr Mackay feels that the entire process could have been avoided if the police had initially approached him for his version before he was arrested. It is regrettable that this was not done.”
Mixed feelings
Kodwa expressed mixed feelings about the Director of Public Prosecutions’ decision and the events of the previous three months. His fall from grace started in June this year when he and Mackay made their first appearance after their arrest on 5 June. They were released on the same day after posting R30,000 bail.
Shortly after that Kodwa resigned as an MP after he was sworn in following the 29 May elections despite facing criminal charges. He also stepped aside as a member of both the ANC’s National Executive Committee and the National Working Committee.
Speaking to the media, Kodwa stated that the decision to resign as a minister had not been easy, but that all decisions and stepping aside were made voluntarily.
“The alleged crime occurred in 2015, when I was not a minister. I was not in government and had no influence at the time. I was just a spokesperson. My immediate task is that I will resume my responsibility in the ANC.
“I want to thank the ANC members who continued to express their support. In the ANC we don’t celebrate when one of us is going through difficulties and challenges. We show and give solidarity and support,” he said.
ANC response
On Friday Mahlengi Bhengu-Motsiri, the ANC’s national spokesperson, said the party noted the withdrawal of the charges.
Bhengu-Motsiri said that Kodwa should notify ANC Secretary-General Fikile Mbalula in order to invoke the step-aside guidelines, which required him to make a representation before resuming duties that included NEC membership.
“It is not automatic. His matter must still be reviewed by Mbalula and the entire National Executive Committee,” she said.
Prospects of a successful prosecution 'diminished'
National Prosecuting Authority Gauteng spokesperson Phini Mjonondwane said that the decision to abandon the prosecution was “premised on grounds militated by the successful representations that were lodged by the accused with the office of the Director of Public Prosecutions, which were comprehensively considered alongside the evidential material contained in the case docket, the reports from the prosecutor and the Regional Head of the Specialised Commercial Crimes Unit and consultation with the investigating officer”.
She said that despite the initial decision to prosecute, the representations submitted had meant that the chances of a successful prosecution had “diminished”, with new developments that had come to light and changed the circumstances. DM
This article was updated with the development that the NDPP plans to review the decision to drop charges.