EDITORIAL | Bongo case: NPA must finish what it started

Bongani Bongo’s day in court had hardly begun before occupants of the political peanut gallery started chirping about Western Cape judge president John Hlophe’s decision to preside over the ANC MP’s corruption trial.

Hlophe, the argument went, could not be trusted to be impartial because he had demonstrated his political bias in 2008 when he allegedly tried to influence Constitutional Court justices to rule in favour of Jacob Zuma.

It is hard to believe a decision to prosecute would have been made without a significant expectation of success, given the political dimensions of the case.

The Judicial Service Commission finally considered a complaint from the justices at a tribunal in December 2020, and its findings are awaited.

The pace of justice moved considerably faster in Bongo’s trial. Hlophe cleared the former state security minister after the prosecution closed its case, agreeing with the defence that there was no evidence on which a court could reasonably return a guilty verdict.

Bongo was even more fleet-footed in response to his acquittal, declaring outside the Cape Town high court that an ANC faction was behind his prosecution. Alongside him, Malusi Gigaba added his voice to a chorus of Umshini Wami, dispelling any vestige of doubt about the faction Bongo had in mind.

The conspiracy theories that sustain the Zuma-aligned radical economic transformation (RET) faction flowed thick and fast on the court steps, and ANC MP and NEC member Tandi Mahambehlala leapt to the conclusion that corruption charges against party secretary-general Ace Magashule are just as “frivolous” as the case against Bongo.

Since last Friday’s acquittal, the usual suspects have popped up to confirm their fealties. ANC Women’s League president Bathabile Dlamini and MK Military Veterans Association president Kebby Maphatsoe have praised Hlophe, while Freedom Under Law and Accountability Now have called for him to be permanently benched.

“His contrived reasoning and perverse ruling last week demonstrate how dangerous it has been to allow him to remain on the bench,” said FUL chair Johann Kriegler, who has been among Hlophe’s fiercest critics for years.

In sum, we have several predictable examples of institutions and individuals rushing to noisy judgment, contrasting with the supernaturally leaden pace of the JSC and a National Prosecuting Authority which sensibly has remained silent as it considers an appeal.

The political shadow over the case makes the second step – a decision to seek leave to appeal – something of a foregone conclusion.

Presumably, the NPA’s first step will be once more to run a fine legal toothcomb over the case it presented to Hlophe. It is hard to believe a decision to prosecute would have been made without a significant expectation of success, given the political dimensions of the case, so we must assume the file will pass muster.

The political shadow over the case makes the second step – a decision to seek leave to appeal – something of a foregone conclusion. If it declines to do so, the NPA will either be acknowledging it had a slim chance to begin with – implying incompetence and the need for heads to roll – or that it is weak.

An appeal will also send another signal that it is escaping the clutches of the capturers and reasserting its independence – though naturally, the RET faction will say the NPA has simply transferred its loyalties to the latest bunch of self-interested hoodlums.

In support of this view, it will point to the internal ANC battle over whether Magashule should step aside until his name has been cleared. Bongo’s acquittal dramatically strengthens the RET argument that the secretary-general should remain in office until his trial is over.

When she took the helm at the NPA, Shamila Batohi would have thought carefully about the political minefield she was about to enter. The decision she makes now, and the way she projects and portrays it, will be a strong indication of how sure-footed she has become.