Bongani Bongo's corruption case sent back to high court for new trial

The Supreme Court of Appeal (SCA) on Monday set aside the Western Cape High Court’s decision to discharge ANC MP Bongani Bongo on a charge of corruption in 2021.

The appellate court sent Bongo’s case back to the high court for a new trial before a differently-constituted court. 

It found if mistakes of law had not been made, the trial court would have found there was sufficient evidence to convict Bongo. 

The state had charged Bongo with corruption, alleging that in 2017 Bongo wrongfully and intentionally offered gratification to parliament’s Eskom inquiry evidence leader Ntuthuzelo John Vanara. 

Bongo pleaded not guilty to the main count of corruption and two alternative counts of corruption.

At the end of the state’s case, Bongo applied for a discharge. Former judge president John Hlophe granted the discharge in February 2021.

The state applied to reserve six questions of law for consideration by the SCA. The high court refused that application, prompting the state to petition the president of the SCA. 

The SCA said the trial court found that Vanara’s testimony was not credible in material respects and, being a single witness, the trial court was of the view that “his evidence must be clear and satisfactory in all material respects”. 

Acting judge of appeal John Smith, in a judgment for the full bench, said he was of the view that the trial court made several mistakes of law.

Smith said the evidence led by the state, at the very least, constituted prima facie evidence that Bongo had committed the crime of corruption.

“Mr Vanara’s testimony established that [Bongo] had offered him gratification to induce him to commit a proscribed act, namely, to feign illness to delay or collapse a parliamentary committee inquiry. 

“In my view, there are reasonable prospects that the evidence led by the state was evidence on which a reasonable court could convict [Bongo],” Smith said. 

Smith said though the state court raised six questions of law for consideration by the SCA, he chose to deal with two and ruled in favour of the state on those questions.

One of the questions was whether the trial court correctly applied the elements of the offence of corruption when it found that the state had not proved the offence of corruption as a result of no arrangements having been made with Vanara for payment. 

Smith said the evidence of Vanara during the trial showed that the element of gratification had been established. 

“The respondent (Bongo) had allegedly offered money to Mr Vanara, albeit in the form of ‘a blank cheque’, namely that he was asked to name his price. Mr Vanara had refused the offer of gratification ...”

Smith said there could hardly be a more straightforward and unambiguous account of the unlawful offering of gratification to a public officer to induce him to perform an unlawful act.

“That the trial court was oblivious to this unequivocal and overt evidence of the commission of the crime of corruption can only be ascribed to its fundamentally erroneous understanding of the elements of that crime.” 

Smith said it was clear the trial court was of the erroneous view that Bongo’s request for Vanara to collapse the inquiry could only constitute a crime of corruption if Vanara had been offered a specific sum of money as gratification.   

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