A bid by the state to appeal the discharge of ANC heavyweight Mike Mabuyakhulu and others charged with corruption in relation to the failed 2012 R28.5m North Sea Jazz Festival project has failed.
In May 2023, Durban high court judge Mahendra Chetty, in an application at the end of the state’s case, effectively acquitted the accused without them having to put up a defence. This, he said, was because there was not a shred of evidence against them.
In terms of law, the state can only seek to appeal against what it considers to be a misdirection by the trial court on questions of law, not questions of fact.
In considering the application for leave to appeal to the Supreme Court of Appeal (SCA) Chetty has ruled even if his judgment revealed he might have been mistaken in his assessment of the evidence the state could not appeal against this.
He was not convinced there were reasonable prospects the SCA would find he had committed a mistake in law and it would lead to the accused in the matter being convicted.
Mabuyakhulu, who was economic development and tourism MEC at the time, was charged with taking a bribe of R300,000 in return for the award of the contract to what became a joint venture.
In his May 2023 ruling, Chetty said there was no evidence to support this allegation or the dozens of others contained in the charge sheet against him and his co-accused.
Chetty’s ruling came after their lawyers applied for their discharge, in terms of section 174 of the Criminal Procedure Act, without having to put up a defence.
This is done at the discretion of the judge at the close of the state’s case in circumstances where the state has failed to prove its case and cannot secure a conviction without the accused having to testify and possibly incriminate themselves.
Chetty went through each charge against each accused, noting the paucity of evidence against them, noting in some instances the allegations were a “stretch too far” and a “sniff of suspicion” was not enough in a criminal trial.
He noted the festival project had been approved by a ministerial subcommittee and by the provincial executive. So it could not be said there had been unlawful expenditure and there were no indications of corruption at that level.
The evidence was that it had failed, ultimately, because of infighting between the service providers.
On allegations the former director-general in the department, Desmond Khalid Golding, who was accused No 1 in the trial, took a “gratification” of R1m to facilitate the appointment of one of the contractors, Soft Skills, Chetty said there was no evidence of this.
Regarding R300,000 paid into Mabuyakhulu’s account, Chetty said the state had not produced evidence to gainsay his version he believed the money had come from a friend who was assisting him to pay off a Sars debt.
He also noted evidence Mabuyakhulu had been the one to pull the plug on the project and was the plaintiff in civil proceedings to recover the R28.5m.
The state, in its argument for permission to appeal, said the outcome of the trial had consequences, “particularly where the judgment is being sought to be relied upon in other ongoing corruption trials”.
Chetty said this mattered not because 174 applications for discharge had to be assessed on the facts of the matter and the nature of evidence presented.
“Counsel for the state did not present any compelling argument a case had been made that would have resulted in a conviction on any or all of the charges.”
He said the strongest point made was the alleged failure [by Golding and Soft Skills] to disclose to the department there was no licence to hold the festival. This at a time when payment was made to Soft Skills “along with the swift dissipation of funds”.
This omission, so the state argued, warranted an inference the accused had a case to answer and was sufficient grounds to infer any payment was unlawful.
Chetty said this appeared to be a question of fact “dressed up as a question of law” to avoid the limitations placed on the state.
At no time was it suggested to any of these witnesses the absence of a licensing agreement would have halted [executive] approval for the eventual payment to Soft Skills
— judge Mahendra Chetty
Further, he said, there was direct evidence from state witnesses the money paid to Soft Skills was in anticipation of the licence dispute being resolved.
It was not for the court to draw conclusions or “fill in the gaps” where the state had not led evidence of witnesses.
Chetty said the state had further submitted they should have drawn an adverse inference from the haste in which the funds were paid to others, almost immediately after Soft Skills was paid by the department.
“However, there was no basis for such inference as the state’s own witnesses confirmed it is customary practice in the arts industry for service providers and entertainers to request payments upfront when they are booked.”
Chetty said the state’s witnesses had testified there were no instances of irregular expenditure which could be attributed to Golding.
“At no time was it suggested to any of these witnesses the absence of a licensing agreement would have halted [executive] approval for the eventual payment to Soft Skills.”
Chetty said he agreed with submissions on behalf of the respondents [the former accused] that the state’s dissatisfaction stemmed not from a legal error but from discontent with the court’s evaluation of the evidence of the state’s witnesses.
In dismissing the application, he said after careful evaluation of the state’s submissions he still believed the respondents were entitled to a discharge at the close of the state’s case “as there was no possibility a conviction would result without them testifying or incriminating themselves”.
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