After President Jacob Zuma gazetted the regulations for the Zondo Commission of Inquiry into State Capture on 8 February 2018 (just one week before he was forced to resign as head of state), many commentators expressed some concern that the regulations would protect many crooks against criminal prosecution. Section 8 of the regulations was of particular concern.
Section 8(1) of the regulations contains the standard provision that “[n]o person appearing before the Commission may refuse to answer any question” put to him or her unless the person was protected by privilege (including the privilege that lawyers have not to testify against their clients). The problem arose with section 8(2) of the regulations which originally stated:
“No evidence regarding questions and answers contemplated in sub regulation 8(1), and no evidence regarding any fact or information that comes to light in consequence of any such questions or answers, shall be admissible in any criminal proceedings, except in criminal proceedings where the person concerned is charged with [perjury].”
This section could be read not only to protect a witness who incriminated himself before the Commission from having his or her incriminating testimony used against him or her in a criminal trial. The section could also be read as preventing a criminal court from considering any facts or information mentioned by a witness — even when these facts or evidence were later corroborated by other witnesses or by hard evidence like cell phone records, notebooks, or bank statements.
In this reading, all witnesses would need to do to prevent highly incriminating evidence from being used in subsequent criminal trials, would be to make sure they mentioned this evidence as witnesses before the commission. This section would have made it close to impossible to prosecute most astute people incriminated in corruption or other crimes before the Zondo Inquiry.
It is for this reason that section 8(2) was amended on 20 March 2018, a few weeks after Cyril Ramaphosa replaced Jacob Zuma as President of South Africa. The section now reads:
“A self-incriminating answer or a statement given by a witness before the Commission shall not be admissible as evidence against that person in criminal proceedings brought against that person… except in criminal proceedings where the person concerned is charged with [perjury].”
This means that evidence referred to by Agrizzi during his testimony before the Commission (including the alleged evidence contained in the so-called bribe book) can now be used in any subsequent criminal trials. Of course, the normal rules of evidence would apply to have such evidence admitted at a criminal trial.
The rules that apply to the Commission of Inquiry for the admission of evidence is not as strict as it is for the admission of evidence at a criminal trial. This is because section 6.1 of the rules of the Commission of Inquiry specifically states that:
“The Commission may receive any evidence that is relevant to its mandate, including evidence that might otherwise be inadmissible in a court of law. The rules of evidence applicable in a court of law need not be strictly applied to the determination of the admissibility of evidence before the Commission.”
In any case, what is clear is that Agrizzi could not be prosecuted purely on the basis of the self-incriminating evidence given by him before the Zondo Commission of Inquiry. But if the Hawks managed to build a case against Agrizzi that does not rely on his testimony before the commission to prove his guilt, he could still be prosecuted.
More likely is that he would offer to testify as a state witness in the hope of receiving indemnity in terms of section 204 of the Criminal Procedure Act. It is important to note that the Zondo Commission does not have the power to offer Agrizzi indemnity from prosecution (although his testimony before the Commission could not be used against him in a criminal trial). Agrizzi’s best bet is to try to make a deal with the National Prosecuting Authority (NPA) in the hope that the judge grants him indemnity from prosecution in terms of section 204 of the Criminal Procedure Act.
Normally a witness called on behalf of the prosecution in a criminal trial has a right to refuse to answer a question if the answer would incriminate him or herself. In most cases where a witness is called to testify against his or her former criminal accomplices, that witness will refuse to answer most questions that could help the prosecution to secure a conviction for fear of incriminating him or herself. This makes the job of the NPA more difficult.
In such cases, the NPA can try to make a deal with the witness. The witness will be forced to answer all questions put to him or her — even when the answers are incriminating — on the condition that the court will grant the witness immunity from prosecution for specified offences if the court finds on a balance of probability that the witness had answered all questions put to him or her “frankly and honestly”.
It is important to note that the NPA cannot guarantee that the witness would be granted immunity from prosecution. It is for the presiding judge to make an assessment after the witness testifies to determine whether the witness answered all questions “frankly and honestly”. Where it turns out that the witness misled the court, the judge cannot grant section 204 immunity and the witness could then be prosecuted.
If Agrizzi turns state witness, and if he is offered a section 204 deal, he will, therefore, have a huge incentive to testify truthfully in order to protect himself against subsequent criminal prosecution.
In 2016, the High Court explained in S v Kuyler and Others that a court — in determining whether section 204 indemnity should be granted or not — would ask whether the witness had answered all (not just some) questions honestly and frankly. The court then continued:
“In the main trial, the evidence of a witness need not be accepted in totality to carry weight. ‘Frankly and honestly on all questions’ stands against trite law that in the decision making process as to whether or not to accept the evidence of an accomplice who testifies under the auspices of section 204 on the merits in the main trial, it is not expected of the accomplice that his testimony is wholly truthful in all he says. His testimony would suffice if it is to a large extent truthful and sufficient corroboration thereof exists.”
The court explained that there is a difference between testifying “honestly and frankly” and being wholly trustworthy.
“A witness may answer, subjectively, honestly and frankly but may make a mistake. If he made a bona fide [honest] mistake he might not be refused indemnity, but his same evidence must be rejected in the main trial if it is material to the issues…. the witness must testify to the best of his ability in the circumstances that prevailed. Circumstances such as personal intellectual and emotional intelligence, fear, perceptions of intimidation, ignorance of the legal system and more may come to play when the indemnity enquiry is held.”
Having an insider turning state witness can assist the prosecutors to secure criminal convictions against “bigger fish”. If Agrizzi is to be believed these “bigger fish” could include Bosasa CEO Gavin Watson, former President Jacob Zuma, and Deputy National Director of Public Prosecutions Nomgcobo Jiba. But the Hawks will be extremely unwise to rely solely on Agrizzi’s testimony. It would have to find corroborating evidence to support Agrizzi’s testimony — otherwise, the testimony might well be rejected by the court.
Our courts have often said that a judge or magistrate should in general not be too ready to rely on the evidence of a single witness. This need for caution is even more pressing when an implicated person testifies against former criminal accomplices in the hope of receiving section 204 indemnity. What could further bedevil the criminal investigations (apart from incompetence or lack of political will on the part of the Hawks) is — as I have noted above — that not all the evidence admitted by the Zondo Commission may be admissible before a criminal court.
In the light of this, it is surprising that the Hawks have not yet (as far as we know) applied for search and seizure warrants to search the Bosasa premises as well as any other places (including his home) where Gavin Watson may be hiding evidence. Neither (as far as we know) have the Hawks applied warrants to search the offices and homes of those politicians and officials like Jacob Zuma allegedly implicated in Agrizzi’s testimony.
This all means that — even if Agrizzi’s testimony is overwhelmingly true — it is far from certain that those implicated in the testimony will ever be successfully prosecuted. This would not necessarily mean they are not guilty. It could just as well mean that the Hawks and the NPA have (yet again) stuffed up an investigation.
But maybe my low expectations of the Hawks and the NPA is misplaced — in which case we should soon see very high-ranking politicians appearing in court on various corruption-related charges — always, of course, assuming that the evidence being provided by Agrizzi is largely true and that there is corroborating evidence to be found by diligent investigators. DM