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NPA must appeal Judge Hlophe’s decision in Bongani Bongo case

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In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

John Hlophe’s decision holds grave implications for the judiciary as well as the future of the NPA and the response of the law to the whole issue of State Capture.

Bongani Bongo, who was the minister of state security in the dying days of the Zuma administration, was charged with a series of contraventions of the Prevention and Combating of Corrupt Activities Act (PCCA), on the basis that he offered a gratification in the form of an offer or a suggestion to advocate Ntuthuzelo Vanara, Senior Legal Adviser to Parliament, which offer was allegedly aimed to derail or interfere with a parliamentary inquiry into Eskom.

Let us leave aside the controversy that continues to brew about the presiding judge, John Hlophe’s decision to hear the case, and undertake a detailed analysis of the judgment. It holds grave implications for the judiciary as well as the future of the National Prosecuting Authority (NPA) and the response of the law to the whole issue of State Capture.

On 23 May 2017, the Portfolio Committee on Public Enterprises instituted an inquiry into allegations of State Capture as contained in widely reported coverage. Vanara was appointed as the evidence leader of the portfolio committee whose inquiry was set to hear evidence from 20 October 2017.

On 4 October 2017, Vanara received a call on his cellphone from Bongo inquiring whether Vanara was still at the offices of Parliament. Vanara informed Bongo that he had already left to catch a flight. Bongo then requested a meeting with Vanara on his return on 6 October 2017. Vanara told Bongo that he was not available at that time. Bongo contacted Vanara on two further occasions, until finally a meeting was proposed for 10 October 2017.

According to Vanara, when they did meet, Bongo said that he had been sent by the acting chairperson of Eskom to ask for his assistance. Bongo explained to Vanara that “the Eskom people” were scared that they might be arrested after they gave evidence at the inquiry and required his assistance. 

According to Vanara, Bongo claimed that the inquiry was the brainchild of Pravin Gordhan and was affecting a number of campaigns. Vanara said he was still confused about what assistance was required of him. It was then that Bongo, allegedly, suggested that the inquiry could not continue, and that Vanara should fake illness or take sick leave in order to delay the inquiry.

When Vanara refused, Bongo allegedly said he must just name his price and that he would then revert to “the Eskom people, tell them about Vanara’s plan and the price then they would pay for Vanara’s assistance”. Vanara did not accept the offer, but on the same day reported the incident to Masibulele Xaso, the Secretary to the National Assembly, and to Baby Tyawa, the Secretary to Parliament. Their evidence, certainly, confirmed both the version that Vanara reported and his anxiety concerning the exchange with Bongo.

Documentation generated by Bongo on 14 March 2018 was also made available to the court. He wrote a letter with the heading, “Complaint about the joint committee on ethics and members interest”, in which, inter alia, he said that he had made a telephone call to Vanara during the first week in October 2017 because “he wanted to seek out his opinion on a matter that I consider to be of huge interest to legal minds”.

How supremely ironic it was that this claim resembled Western Cape Judge President Hlophe’s own version of his much publicised visit to the Constitutional Court to debate the law of privilege in connection with the Zuma matter.

Bongo then stated that he had followed up with a telephone call during the second week of October, as he required a second opinion on a particular matter. He now states, “At the time I was preparing an article to be submitted to the ANC’s presidency on the consequences that might be unforeseen in establishing parallel enquiries that involves same party, same allegations, same set of facts and the dangers that it poses to democratic South Africa [sic].” He denied that, at any point, he requested Vanara to collapse the inquiry into Eskom, and stated that he had never possessed a chequebook, never operated one and was not accustomed to “the cheque business”.

In his view, this finding explained why Vanara had never thought it proper to report “a crime” to the police. The key word in respect of corruption is “gratification” and the definition thereof would certainly support the State case if Vanara’s version was accepted.

At the end of the State case, Mike Hellens, SC, on behalf of Bongo, made an application for his discharge in terms of section 174 of the Criminal Procedure Act which provides, “if at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any other offence of which he may be convicted, it may return a verdict of not guilty”.

The law in regard to this section is fairly settled. It is trite that the presiding judge is invested with the sole discretion as to whether to grant the discharge of an accused person. What needs to be applied is whether or not there is evidence upon which a reasonable court acting carefully may convict an accused person.

The credibility of a “witness at the stage of a discharge plays a limited role. It cannot be rejected as a factor”. However, this evidence should only be ignored if it is of such poor quality that no reasonable person could possibly accept it. The credibility of a witness may be taken into weighty consideration where the witness “dismally fails to implicate” the accused, where the failure is associated with the witness’s evidence which is “cancelled or negated during cross examination”. Further, this evidence can be rejected if it is of such a poor quality that the court is “unable to discern where the lies ended and the truth began”. Much of this jurisprudence was captured in S v Dewani.

Hellens’ bull point was that the various senior parliamentary officials were obliged to report a crime to the police. Their failure to do so indicated that it was unlikely that Vanara’s version was correct. This failure to report what was “now dressed up as a crime is not only inexcusable but inexplicable on the probabilities they have no suspicion or knowledge”.

Hellens argued that no specific amount of money had been mentioned by Bongo. Vanara had not been requested to provide his bank details. No follow-up meeting had taken place. Hellens contended that the State case did not accord with any reasonable possibility that such a vague and inarticulate request might have been made.

Hlophe noted that Vanara was a single witness and that it was only his evidence that gave rise to the charges levelled against Bongo. None of the other witnesses were present at their meeting. They could only attest “to what Mr Vanara relayed to them regarding the meeting between himself and Mr Bongo”.

Much was made (and one must confess that the relevance thereof was never properly explained) of Vanara justifying that he did not know that Bongo was an advocate of the high court. Further, as had been foreshadowed in somewhat surprising comments from the Bench during the trial, the Judge President found that Secretary to Parliament Tyawa was unable to explain satisfactorily “why ‘bribe’ was not mentioned at all in her evidence”, for “it was only after the Bench touched on this issue again that she made mention of ‘bribe’, a pivotal point which she had left out in evidence-in-chief”. That hardly reduced her evidence to irrelevancy in that it, in part, supported Vanara’s version.

However, Hlophe placed importance upon an affidavit deposed to by Bongo where he said, “ ‘as we were both individuals from the advocacy profession we effortlessly began to interact on issues and mutual interest and particular legal issues that may have a bearing in the execution of our duties in Parliament’. 

“By contrast, the evidence of other State witnesses clearly does not corroborate that of Mr Vanara in some material respects.”

The judge referred to the PCCA, saying: “The Act is very clear that only when an offer of gratification is made in exchange for a proscribed act, ie, the delay or collapse of the enquiry committee in favour of Mr Vanara or any other person, only then it becomes a crime.” 

In his view, this finding explained why Vanara had never thought it proper to report “a crime” to the police. The key word in respect of corruption is “gratification” and the definition thereof would certainly support the State case if Vanara’s version was accepted.

The scope for an appeal against a decision of a court, invoking section 174 of the Criminal Procedure Act to discharge an accused, is extremely narrow. It is possible that section 319 of the Criminal Procedure Act is applicable. It provides, inter alia, that “if any question of law arises in the trial in a superior court of any person for any offence, that court may of its own motion or at the request either of the prosecutor or the accused reserve that question for the consideration of the Appellate Division”.

In a matter of this importance the State is obliged to carefully consider whether it should pursue an appeal. The judgment of the Supreme Court of Appeal (SCA) in 2006 in the Director of Public Prosecutions Transvaal v Mtshweni is of assistance. In that case, the critical question was whether a bullet that was extracted from the victim was shot from a firearm used by the accused. A ballistics expert reported that no such determination could be made, but of critical importance to the appeal was that the State had not called the ballistics expert to testify. The State argued on appeal that the judge had erred in law in that, given his view that the ballistics fell short of the evaluation of the evidence, it behoved the court to ensure that the ballistics expert testified before the court.

The SCA held that the trial judge had evidenced a misunderstanding of “the import of a ballistics report”. He had failed to call the witness in order to understand that evidence. This was an error of law. Furthermore, invoking section 322 (1) (a) of the Criminal Procedure Act, Justice Carole Lewis said, “In the case of any question of law reserved the court of appeal may allow the appeal if it thinks that the judgment of the trial court should be set aside on the ground of any wrong decision of a question of law.” Accordingly, “when an acquittal is based on a wrong answer to a legal question a retrial does not in fact amount to double jeopardy”.

This judgment widens the scope of section 319 read with section 322 of the Criminal Procedure Act and may well provide sufficient basis for the SCA to decide a question of law in the Bongo case. There is a question of law as to whether an exact amount has to be offered for the PCCA to be contravened. Similarly, the over-emphasis on the credibility of Vanara flies in the face of a veritable body of authority.

If Judge Hlophe found correctly, then the NPA and its head will be in the spotlight for all the wrong reasons. Hence, the need to appeal, in that this highly questionable finding has already been embraced by a coterie of those who desire nothing more than to revert to the Zuma status quo. DM

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  • Coen Gous says:

    An excellent article professor. thank you. There are 4 key things at play here. 1. It is a known fact that there are still rogue elements present at the NPA. Should they NOT appeal this judgement, it might mean that the NPA is still compromised, with grave consequences for current and future corruption cases. Win or loose, they simply have to appeal! 2. Should the NPA appeal, Judge Hlope will still have the power to appoint a Judge that is a supporter of himself, and therefor could influence the decision indirectly, upholding the previous judgement. 3. Ex-Judge Kriegler also believe Judge Hlope should be suspended. But in an article on News24, the spokesperson of the JSC, CP Fourie, said that in order to suspend a judge, certain provisions needs to be followed as set out in the JSC Act, also saying that there are processes underway in relation to Hlope and that the judgement of the tribunal is awaited. So why is it taking so long? 4. Zuma repeatedly said that in order to have state capture, the judiciary also have to be captured. But this Hlope case now raises the question…. Has the judiciary not already being captured!?

  • Etienne Theron says:

    The state did not reserve any questions of law. They can not appeal.

    • Dennis Bailey says:

      And Hlope would know this, so NPA is up the creek without a paddle. As always. Oh, for prosecutors who are not compromised.

      • Sydney Kaye says:

        There is also the possibility that the NPA went into this in order to lose.
        Consider (1) out of all the corruption cases out
        there why did this one come up so quickly and enthusiastically. (2) It could credibly lose because of lack of corroboration. (3) Why did the state not object to Hlophe sitting when the perception of bias was there by virtue of the accusations against him. (4) It would suit the rogue elements in the NPA to give the RET a victory.

    • Coen Gous says:

      Etienne, how sure are you about that? Surely this professor, Ex-Judge Kriegler, as well as the comments made by other legal experts and the NPA that they will study the judgement can’t all be wrong?

  • Darryl van Blerk says:

    That reliable old chestnut, plausible deniability, a favourite of Hlope and company. Meanwhile the damage Hlope is doing to the credibility of the judiciary in SA is immense. If the NPA is now denied the right to appeal the judgement, in that justice in this matter is so clearly in the public interest, surely civil society can pick up the cudgel and prosecute privately?

    • Coen Gous says:

      Good point….Afriforum…take this up. Clearly the prosecutor did not handle this case very well, considering it was such a high profile case.

  • Sergio CPT says:

    This is another disgraceful act by an equally disgraceful degenerate, which will have dire consequences for the country if allowed to pass. Hlope is not to be trusted at all and is highly compromised and flawed. He bats for the wrong side (is a zuma/magashule etc. apologist/fixer) and is nothing but a devious, sly, arrogant and scheming individual, bereft of any morals, ethics, integrity and honesty, who should have been fired ages ago. He is totally unfit for purpose and is there to derail justice whenever he can for the RET/State Capture thieves. Between him and the public menace (protector), SA is in such bad hands. If the NPA fails to appeal, then we should support Afriforum to do it. I am sure many of us would contribute to make this happen.

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