The National Prosecuting Authority’s (NPA’s) approach to the Supreme Court of Appeal over Bongani Bongo’s acquittal for corruption was “patently defective”, said Bongo’s attorney, Jean-Chris de Jager, in court papers.
De Jager was responding to the state’s petition to the SCA to appeal against the Western Cape High Court’s refusal to “reserve questions of law” after Bongo’s acquittal in February last year. The NPA is seeking a way to potentially overturn the acquittal, which caused a public outcry. Bongo was charged for corruption when he was alleged to have offered a bribe to Ntuthuzelo Vanara to collapse the Eskom inquiry in parliament in 2017. Vanara was evidence leader at the inquiry.
The “public outrage against corruption” and the “misleading impact” of the high court’s findings were compelling reasons why the Supreme Court of Appeal ought to hear the appeal”, said Western Cape director of public prosecutions Nicolette Bell in the NPA’s petition, filed in the SCA at the end of September.
The reservation of questions of law procedure allows the SCA to consider questions of law that arose in a criminal trial in the high court. The state is not allowed to appeal against a high court conviction on the facts, only on the sentence. But it may, through this reservation of questions of law procedure, change the outcome of a case if the appeal court finds that the trial court got the law wrong.
When Western Cape judge president John Hlophe acquitted Bongo, the NPA then asked him to reserve certain questions of law, which the prosecution said he had got materially wrong. He refused, saying the application was “a disguised appeal”.
Responding to the NPA’s petition, De Jager made the same point as Hlophe: “This application for a reservation of questions of law has no prospects of success whatsoever. It is an indirect appeal on the factual findings of [the] trial judge,” he said.
In the NPA’s petition, Bell had said Hlophe had “wrongly applied several legal principles”.
Hlophe acquitted Bongo in terms of section 174 of the Criminal Procedure Act. A section 174 discharge means the court found the state’s case was so weak that a conviction would have been impossible at the close of the state’s case after it had brought all its evidence and without the defence even needing to call its own witnesses.
The effect of these misdirections ... placed the evidence of the state witnesses in a bad light. The evidence of the state witnesses was not so palpably poor as to amount to no evidence.
— Nicolette Bell, Western Cape director of public prosecutions
Bell said the Western Cape court had made a number of legal “misdirections”. These included the way the court had defined the offence of corruption under the Prevention and Combating of Corrupt Activities Act (Precca) and the emphasis the court had placed on the credibility of Vanara as a witness. “It is trite that credibility has limited role in [section 174] application,” said Bell.
“The effect of these misdirections ... placed the evidence of the state witnesses in a bad light. The evidence of the state witnesses was not so palpably poor as to amount to no evidence,” she said.
But De Jager said what Bell had called questions of law, were actually disguised questions of fact. “The law was not misstated, nor misappreciated ... It is clear that court had difficulty in accepting, at the level of credibility and at the level of the cumulative probabilities, the truth of Mr Vanara’s evidence.”
When Hlophe had said in his judgment that Vanara did not have power to collapse the Eskom inquiry, Bell referred to Precca, which specifically said it was not a defence for an accused person to contend that he or she did not have the power to perform the act in relation to which bribe was offered.
But De Jager said the court had never found that, as a matter of law, Precca required a person to have the power to commit the act for which a bribe was offered.
“That was not a finding of law made ... the simple finding of fact that was made was that it was difficult to believe that if one person knew that the other person had no power to do that which he was requested to do, that on the probabilities one would not seek to bribe him to do that which he could not do. It would be, in the finding of the court as a matter of fact, a senseless act.”
On Tuesday Bongo and 11 others appeared briefly at the Mbombela commercial crimes court for the start of their trial relating to alleged involvement in two dubious Mpumalanga land sales.
The matter was postponed to November 16, and their bail was extended.
The court was expecting to hear plea explanations from the accused when one suspect, Blessing Singwane, who changed legal representation, requested further particulars from the state.
Bongo and the other accused are facing 69 counts of fraud, theft, corruption and contravention of the Public Finance Management Act.
The Sunday Times reported the charges relate to a farm outside Ermelo, Mpumalanga, that was bought for R10.5m and sold to the government a few minutes later for R36m. A second land deal in Emalahleni, using the same modus operandi, saw a farm bought for R15m and sold to the human settlements department for R37.5m, also allegedly shortly thereafter.
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