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[2021] ZAWCHC 36
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S v Bongo (CC 06/2020) [2021] ZAWCHC 36 (26 February 2021)
In
the High Court of South Africa
(Western
Cape Division, Cape Town)
Case
Number: CC 06/2020
In the matter between:
The
State
And
Mr
Bongani Bongo
Accused
judgment delivered on
26 February 2021
HLOPHE, JP:
Introduction
[1]
The Accused in this matter, Advocate
Bongani Bongo (
Mr Bongo
)
was a member of the National Assembly from 07 May 2014 to 16 October
2017. He was a member of the executive branch of government,
having
served as the Minister of State Security during the period 17 October
2017 to 26 February 2018. Mr Bongo then became a Member
of Parliament
on 27 February 2018, a position he still presently hold. The
allegation levelled against Mr Bongo is that he offered
a bribe to
Advocate Nthuthuzelo John Vanara (
Mr
Vanara
), the evidence leader of the
Portfolio Committee on Public Enterprises: Eskom Inquiry, in order to
delay or collapse the Inquiry.
Mr Bongo denied those allegations. He
stated that he knew Mr Vanara as a lawyer and had engaged him
previously and had discussions
with him regarding the parallel
processes and enquiries. Furthermore, Mr Bongo referred to a sworn
statement submitted by him before
the Ethics Committee Inquiry
against him. In terms of that statement Mr Bongo denied the
allegations relating to collapsing the
Inquiry/ and or bribing Mr
Vanara.
[2]
When the trial started the following
charges were put to the accused by Ms Du Toit-Smit who appeared for
the state together with
Mr Combrink
Charges
[3]
The State preferred the following
charges:
a)
The main count: contravening section
4(1)(b), read with 1,2, 24, 25, 26(1)(a)(ii) and 26(3) of the
Prevention and Combating of Corrupt
Activities Act 12 of 2004 (
the
Act
) – Corrupt activities
relating to public officers ( offering a gratification). In that on
or about 10 October 2017 and at
or near Cape Town, in the district of
the Cape, the accused wrongfully and intentionally, directly or
indirectly, offered a gratification
to a public officer, Mr Vanara
for his own benefit and /or for the benefit of any other person, in
order for him to act personally,
and/or by influencing another person
so to act, in a manner proscribed in section 4(1)(1) of the
Act, to wit: to fake illness
and/or take sick leave and/or assist the
accused to delay and/or to stop the Inquiry into Eskom’s
affairs in terms of the
Portfolio Committee’s terms of
reference from continuing.
b)
The first alternative charge:
contravening section 3(b), read with 1, 2, 24, 25, 26(1)(a)(ii) and
26(3) of the Act– Corruption
(offering a gratification). In
that on or about 10 October 2017 and at or near Cape Town, in the
district of the Cape, the accused
wrongfully and intentionally
offered a gratification to Mr Vanara for his own benefit and /or for
the benefit of any other person,
in order for him to act personally,
and/or by influencing another person so to act, in a manner
proscribed in section 3(i)
to (iv) of the Act, to wit: to fake
illness and/or take sick leave and/or assist the accused to delay
and/or to stop the Inquiry
into Eskom’s affairs in terms of the
Portfolio Committee’s terms of reference from continuing.
c)
The second alternative charge:
contravening section 10(b), read with 1, 2, 24, 25, 26(1)(a)(ii) and
26(3) of the Act 12 of 2004
– offering an unauthorised
gratification – employment relationship. In that on or about 10
October 2017 and at or near
Cape Town, in the district of the Cape,
the accused wrongfully and intentionally offered an unauthorized
gratification for Mr Vanara’s
benefit and /or for the benefit
of any other person, in respect of him doing an act in relation to
the exercise, carrying out or
performance of his powers, duties or
functions within the scope of his employment relationship, to wit: to
fake illness and/or
take sick leave and/or assist the accused to
delay and/or to stop the Inquiry into Eskom’s affairs in terms
of the Portfolio
Committee’s terms of reference from
continuing.
[4]
Mr
Bongo prepared a plea statement in terms of section 115 of the
Criminal Procedure Act, 51 of 1977 (
Criminal
Procedure Act
).
The document was handed up to court and marked exhibit “A”.
The essence of the
section 115
statement is that Mr Bongo denied any
engagement with Mr Zethembe Khoza (the then Acting Chairperson of the
Eskom Board) or engaging
in any attempt to collapse the Portfolio
Committee on Public Enterprises: Eskom Inquiry (
Inquiry
Committee
).
In his response to the 212B notice
[1]
marked exhibit “B2” Mr Bongo denied all essential
allegations levelled against him by the State and put the State to
prove it.
[5]
The state’s case rested largely
on the evidence of Mr Vanara, the evidence leader. There were other
witnesses called by the
State in an attempt to collaborate Mr
Vanara’s evidence and to explain the protocol followed by
administrative officials
in reporting allegations of corruption
brought to their attention. When the state closed its case, Mr
Hellens SC, who appeared
for the accused, Mr Bongo, brought an
application in terms of
section 174
of the
Criminal Procedure Act.
The
State opposed the application. Heads of arguments were filed by
both sides and the matter was fully argued in court on Wednesday,
24
February 2021.
The legal
position
[6]
Section 174
of the
Criminal Procedure
Act stipulates
the following:
“
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 offence of
which he may be convicted on the charge, it may return a verdict
of
not guilty.”
[7]
It
is trite that “no evidence” does not mean that there is
literally no evidence, but rather that there is a lack of
evidence on
which a reasonable court, acting carefully, would convict the
accused.
[2]
Whether or not a
discharge should be granted at this stage is a decision that falls in
the ambit of the trial court’s discretion.
This discretionary
power is one that must be, self-evidently, judicially exercised.
[3]
[8]
One of the leading cases regarding
section 174
applications is surely
S v
Lubaxa,
2001 (2) SACR 703
(SCA). There the Supreme of Appeal stated
the principle as follows:
“
[18]
I have no doubt that an accused person (whether or not he is
represented) is entitled to be discharged at the close
of
the case for the prosecution if there is no possibility of a
conviction other than if he enters the witness box and incriminates
himself. The failure to discharge an accused in those
circumstances, if necessary mero motu, is in my view a breach of the
rights that are guaranteed by the Constitution and will ordinarily
vitiate a conviction based exclusively on his self-incriminatory
evidence.
[19]
The right to be discharged at that stage of trial does not
necessarily arise, in my view, from considerations relating to the
burden of proof (or its concomitant, the presumption of innocence) or
the right of silence or the right not to testify, but arguably
from a
consideration that is of more general application. Clearly a
person ought not to be prosecuted in the absence of a
minimum of
evidence upon which he might be convicted, merely in the expectation
that at some stage he might incriminate himself.
That is
recognised by the common law principle that there should be
‘reasonable and probable’ cause to believe that
the
accused is guilty of an offence before a prosecution is initiated
(Beckenstrater v Rottcher and Theunissen
1955 (1) SA 129
(A) at
135C-E), and the constitutional protection afforded to dignity and
personal freedom (s 10 and s 12) seems to reinforce it.
It
ought to follow that if a prosecution is not to be commenced without
that minimum of evidence, so too should it cease when the
evidence
finally falls below that threshold. That will pre-eminently be
so where the prosecution has exhausted the evidence
and a conviction
is no longer possible except by self-incrimination. A fair
trial, in my view, would at that stage be stopped,
for it threatens
thereafter to infringe other constitutional rights protected by s 10
and s 12.”
[9]
It
has been held that the credibility of state witnesses plays a very
limited role at this stage in the proceedings.
[4]
It must be noted that relevant evidence can only be ignored if “
it
is of such a poor quality that no reasonable person could possibly
accept it”.
[5]
The
S
v Agliotti
[6]
judgment by Kgomo, J (as he then was) developed this approach further
by stating the following:
“
[272]
In S v Lavhengwa
1996 (2) SACR 453
(W) the view was expressed that
the processes under s 174 translate into a statutorily granted
capacity to depart discretionally,
in certain specific and
limited circumstances, from the usual course, to cut off the tail of
a superfluous process. Such
a capacity does not detract from
either the right to silence or the protection against
self–incrimination. If an acquittal
flows at the end of
the State case the opportunity or need to present evidence by the
defence falls away. If discharge is
refused, the accused still
has the choice whether to testify or not. There is no
obligation on him to testify. Once
this court rules that there
is no prima facie case against the accused, there also cannot be any
negative consequences as a result
of the accused’s silence in
this context. …
[273]
I agree with the view that it is an exercise in futility to lay down
rigid rules in advance for an infinite variety of factual
situations
which may or may not arise. It is thus, in my view, also
‘unwise to attempt to banish issues of credibility’
in
the assessment of issues in terms of s 174 or to ‘confine
judicial discretion’ to ‘musts’ or ‘must
nots’.”
[7]
[10]
The legal position in respect of
section 174 applications can be summarised thus:
a)
If there is no possibility of conviction
besides having the Accused testify and giving incriminating evidence,
such accused is entitled
to be discharged at the close of the State’s
case;
b)
The court may take into account credibility
of State witnesses when the court makes a decision whether or not to
grant a section
174 application at the close of the State’s
case, even if only to a limited extent;
c)
A
section 174 application should be granted where the State’s
evidence implicating the Accused is of such a poor quality that
it
cannot be relied upon, and there is no credible evidence upon which a
court, acting carefully, may convict the Accused. To
refuse a
section 174 application in such circumstances would be a
misdirection, as Traverso, DJP, as she then was, pointed in
S
v Dewani
,
supra.
[8]
[11]
I will now proceed to analyse the
evidence against the backdrop of this legal position.
Mr Vanara’s
evidence-in-chief
[12]
When the trial started the State
intimated that 7 witnesses were going to be called. The first witness
was Mr Vanara, being the
star witness. Mr Vanara is a highly
qualified advocate. He holds a B.Proc Degree, LLB, an LLM Degree as
well as a Certificate in
legislative drafting and Management
Development. He served his articles of clerkship from 1997 to 1999
and was an admitted as an
Attorney. He practised as an Attorney for
about 6 months, which included criminal matters. He left the
Attorneys’ practice
at his own accord and joined the Advocates’
profession. He is, however, not a practising Advocate.
[13]
Mr Vanara commenced employment at
Parliament from 01 January 2007.In 2017 Mr Vanara was appointed as
Senior Manager: Legal and Constitutional
matters. He was also the
Principal Officer of the Executive Pension Fund and Acting Registrar
for the Committee on Ethics and Members’
Interest. Mr Vanara
was appointed as Evidence Leader for the Inquiry Commission on 01
September 2017.
[14]
On 04 October 2017 Mr Vanara scheduled
a meeting with the Acting Chairperson of Eskom, Mr Zethembe Khoza
(
Khoza)
for 05 October 2017 in Johannesburg. On the same day, Mr Bongo made
three phone calls to Mr Vanara.
[15]
When Mr Bongo made the first call, Mr
Vanara did not recognise the number but took the call. Mr Bongo
introduced himself and enquired
if Mr Vanara was still at the office.
Mr Vanara informed Mr Bongo that he was on his way to Durban but he
was in fact on his way
to Johannesburg. Mr Vanara intentionally
misinformed Mr Bongo about his travelling destination due to security
reasons. Mr Bongo
asked whether he had a scheduled meeting with Mr
Khoza, to which Mr Vanara stated that he was waiting for confirmation
of the meeting.
[16]
On the same day Mr Bongo called a
second time in order to ascertain at what time Mr Vanara’s
flight would land and if he could
meet up with Mr Vanara at Cape Town
Airport. Mr Vanara declined to meet with Mr Bongo at the Airport and
agreed to meet with Mr
Bongo on Monday, the following week. When Mr
Vanara and Mr Mocumi were on their way from the airport to the hotel,
Mr Vanara enquired
from Mr Mocumi whether he knew Mr Bongo. Mr Mocumi
confirmed that he knew Mr Bongo as a Member of Parliament. Mr Vanara
told Mr
Mocumi that Mr Bongo had a particular interest in the Inquiry
Committee. Mr Bongo called a third time, in order to confirm if the
meeting scheduled with Mr Khoza was in Cape Town.
[17]
Mr Bongo and Mr Vanara never met on
Monday as agreed. On Tuesday, 10 October 2017 Mr Bongo met up with Mr
Vanara at his office in
Parliament. Mr Vanara relayed the following:
“
I
let the Accused in my office. He told me he was requested by the
Acting Chairperson of the Board to ask me for assistance. When
the
Accused referred to ‘assistance’, I then asked him what
the nature of the assistance required. He said that Eskom’s
people were worried about incriminating evidence against them and
there would be police officials waiting to arrest them. I asked
him
what exactly he meant by ‘assistance’. He said the
inquiry is Pravin Gordhan’s brainchild and that he was
conflicted. He said the Inquiry was affecting a number of inquiries.”
[18]
Mr Vanara was confused and asked Mr
Bongo once again how he could assist. Mr Bongo suggested that Mr
Vanara fake an illness and
take sick leave so that in Mr Vanara’s
absence the Inquiry would not proceed. Mr Vanara told Mr Bongo that
the Inquiry Committee
was a result of a political decision and that
they could stop it themselves as politicians. Mr Vanara told Mr Bongo
he could not
assist him. This is when Mr Bongo told Mr Vanara “
[J]ust
name the price and tell me how you would help stop the inquiry. I
will then go back to the Eskom people, tell them of your
plan to stop
the inquiry and the price they would have to pay for your assistance.
They will then give me the money and I will
hand the money over to
you.”
Mr
Vanara, who said his conscience and integrity would not allow him to
assist Mr Bongo, stated: “
I was
cold on my feet. I told him the meeting is over. I opened the door
for him and told him there is nothing to consider.”
[19]
Mr Vanara sent Mr Phindela a WhatsApp
message asking Mr Phindela to call him regarding an incident that
happened involving the Inquiry
Committee. Mr Phindela was in
Stellenbosch attending a scheduled workshop with senior managers and
the union officials. At
the workshop, he informed Mr Phindela and Mr
Xaso about Mr Bongo who offered him a bribe in exchange for his
assistance to delay
or collapse the Inquiry Committee. The incident
was later reported to the Acting Secretary to Parliament, Ms Tyawa.
He submitted
an affidavit on 26 October 2017, 16 days after the
alleged commission of corruption on 10 October 2017.
Cross-examination
[20]
Mr
Vanara admitted that he never reported the incident to the South
African Police Service (
SAPS
).
He acknowledged that he was aware of the Act in general but not the
specific provisions in terms of which a person with the knowledge
of
corruption or who has reasonable suspicion thereof must report same
to SAPS (section 34(2) of the Act).
[9]
He only reported it to Mr Phindela, Mr Xaso and Ms Tyawa.
[21]
When Mr Vanara was asked to explain how
Mr Bongo knew about the domestic dispute and criminal charge (which
was subsequently withdrawn)
of assaulting his wife in about June
2017, Mr Vanara denied disclosing his personal affairs to anyone or
knowing Mr Bongo before
04 October 2017. He maintained that he was
not aware that Mr Bongo was an Advocate. He denied that Mr Bongo met
up with him on
10 October 2017 in order to have a legal discussion
between two colleagues regarding the effects of a parallel inquiry
into Eskom.
[22]
When questioned by the Bench, Mr Vanara
confirmed that when Mr Bongo made the gratification offer to him,
there was no blank cheque
offered or a fixed amount that was
proposed. Mr Bongo or anyone else on his behalf never tried to make
any arrangements for payments
or obtaining Mr Vanara’s bank
details. After this incident, Mr Bongo never called Mr Vanara again
or met up with him. There
was no contact between Mr Vanara and Mr
Bongo after 10 October 2017.
[23]
The difficulty with Mr Vanara’s
evidence is that having a discussion about delaying or collapsing a
parliamentary process
is not unlawful in terms of the Act. The Act is
very clear that only when an offer of gratification is made in
exchange for a proscribed
act, i.e., the delay or collapse of the
Inquiry Committee, in favour of Mr Vanara or any other person, only
then it becomes a crime.
[24]
With Mr Vanara admitting that he simply
did not have the power to stop the commencement of the Inquiry
committee; it then becomes
difficult to accept a senseless and futile
act of bribing someone to act beyond the scope of their power, as the
truth. Upon being
questioned by the Bench in respect of bank details
being obtained, Mr Vanara confirmed that he was never approached for
his bank
details by Mr Bongo or anyone else on his behalf. There was
no offer of a specific amount or arrangements to get the money to Mr
Vanara. Furthermore, there were no follow-up meetings between Mr
Vanara and Mr Bongo.
[25]
As we shall see below, Mr Vanara did
not discuss this very important incident with Mr Mocumi. Mr Vanara’s
decision to withhold
such an important incident from Mr Mocumi
constitutes a huge anomaly as he worked with Mr Mocumi closely,
travelled regularly with
him and shared everything with him to do
with the Eskom Inquiry, besides the incident of 10 October 2017.
[26]
Mr Vanara is yet to file a criminal
complaint. His evidence was only presented to Parliament through
administrative officials and
for politicians to deal with. He did not
report the commission of corruption to SAPS as required in terms of
section 34(1) of the
Act. His conduct is not consistent with that of
a lawyer with knowledge of criminal law.
[27]
The conclusion is inescapable: if Mr
Vanara believed that Mr Bongo is guilty of an offence of corruption
in terms of the Act, he
(Mr Vanara) would have reported same to the
Hawks/SAPS as required by section 34(1) of the Act. Why would he, Mr
Vanara, choose
to commit an offence under section 34(2) of the Act by
not reporting the crime to Hawks/SAPS. Thus, his failure to report
the incident
of 10 October 2017 to the Hawks/SAPS simply does not
make sense.
Mr Disang
Mocumi’s evidence
[28]
Mr Mocumi is currently the Secretary
for the Portfolio Committee on Public Enterprises. He was the
Secretary for the Inquiry Committee
at the time of the incident. On
04 October 2017, when Mr Mocumi and Mr Vanara landed in Johannesburg,
Mr Vanara received a phone
call on their way to the hotel. Mr Mocumi
did not know who the caller was at the time and could not hear what
the caller said.
Mr Mocumi heard Mr Vanara confirm that he is in
Durban and that he would meet with the Acting Chairperson of Eskom.
After the call,
Mr Vanara asked whether Mr Mocumi knew Mr Bongo and
that Mr Bongo had a particular interest in the Inquiry Committee. Mr
Mocumi
told Mr Vanara that he knew Mr Bongo as a Member of
Parliament.
Cross-examination
[29]
When it was put to Mr Mocumi that he
said to Mr Vanara in the presence of Elise Miller “
who
does Mr Bongo think he is. He is a small boy and we will deal with
him”
, he said that he did not
recall making that comment. When questioned about his knowledge
around the incident of 10 October 2017,
Mr Mocumi admitted that he
never knew about the incident as Mr Vanara never informed him about
it. His evidence was clearly that
Mr Vanara did not tell him about
the incident of 10 October 2017 involving Mr Bongo.
Mr Masibulele
Xaso’s testimony:
[30]
Mr Xaso is employed in Parliament as
the Secretary to the National Assembly since 01 April 2013. He was
approached by Mr Phindela
at the management and union workshop at
Stellenbosch on 10 October 2017. Mr Phindela indicated that Mr Vanara
called in order to
meet with them regarding an incident involving the
Inquiry Committee that occurred earlier that day. Mr Xaso, Mr
Phindela and Mr
Vanara met in Stellenbosch at the Protea Hotel
between 15:00 and 16:00 on the same day. Mr Vanara told them that he
had received
several calls from Mr Bongo and that Mr Bongo seemed to
have known about the Inquiry Committee, the witnesses and meetings.
Mr
Vanara said Mr Bongo told him that he was concerned about
incriminating evidence coming to light and that members of the Eskom
Board would be arrested. Mr Vanara said that when they met in Mr
Vanara’s office, Mr Bongo told Mr Vanara to fall sick and
cause
the Inquiry Committee to collapse. Mr Bongo told Mr Vanara to name
the price, which Mr Vanara viewed as an attempt to bribe
him. Mr
Vanara rejected Mr Bongo’s offer and asked Mr Bongo to leave
his office.
Cross-examination
[31]
Under cross-examination, Mr Xaso
admitted that he knew he was obligated in terms of the Act, to report
the commission of corruption
but that he and Mr Phindela agreed to
report it to the appropriate Parliamentary authority, i.e., the
Acting Secretary to Parliament,
Ms Tyawa. When questioned about his
failure to report the crime to the police he maintained that he
reported it to Parliament instead.
He admitted that he only made an
affidavit in September 2018 for the Ethics Committee and submitted
another statement in 2020 for
purposes of the criminal trial.
[32]
Moreover, Mr Xaso said Mr Vanara did
not say Mr Bongo knew about schedules or meetings with possible
interviews with witnesses.
Mr Xaso relayed that all Mr Vanara told
him is that Mr Bongo told Mr Vanara to make himself unavailable and
to name the price.
Mr Xaso admitted that he knew Mr Bongo was an
Advocate but that he could not confirm if the other Members of
Parliament knew Mr
Bongo as an Advocate. He confirmed that Mr Bongo
did not have the power to make the Inquiry Committee collapse.
Mr Modibedi
Phindela’s testimony
[33]
Mr Phindela is an admitted Advocate who
holds a B.Juris, LLB and an LLM Degree. He is the Secretary to the
National Council of Provinces
since 2007. On 10 October 2017 when he
was in Stellenbosch, Mr Vanara called him and wanted to see him
regarding a matter in which
he was the evidence leader. Mr Vanara
came to see Mr Phindela at Stellenbosch later the same day. Mr
Phindela and Mr Xaso were
together when Mr Vanara met with Mr
Phindela. Mr Vanara told them that he was “
approached
by Advocate Bongo and offered a bribe”
.
They then proceeded to report the incident to Ms Tyawa.
Cross-examination
[34]
Mr Phindela admitted that he was aware
that there was an obligation to report corruption to the police. The
defence questioned Mr
Phindela why he failed to report the incident
to the police. Mr Phindela said he had reported the matter to Ms
Tyawa.
[35]
Mr Phindela conceded in
cross-examination that Mr Bongo was known as Advocate Bongo at
Parliament. He said everyone knew that Mr
Bongo was an Advocate. Mr
Phindela never informed Mr Vanara that Mr Bongo was an Advocate. Mr
Phindela admitted that he only made
a statement of the incident on 23
May 2018, some 5 months after the incident, after the Police
approached him to make a statement.
Mr Phindela said “
All
he told me is that he was approached and offered a bribe. That is all
he said to me and Ms Tyawa”.
This
contradicts Mr Vanara’s evidence in chief referred to above.
Penelope Tyawa’s
testimony
[36]
Ms Tyawa was the Acting Secretary to
Parliament at the time. Mr Phindela, Mr Xaso and Mr Vanara approached
her regarding the incident
of 10 October 2017. She relayed that Mr
Vanara said that “
he was
approached by Honourable Mr Bongo to collapse the inquiry”.
She
then told Mr Vanara to reduce the incident to writing so that she
could submit it to the Executive authority. On 26 October
2017 Mr
Vanara submitted the statement. Ms Tyawa confirmed that she was aware
of the reporting duty in terms of section 34 of the
Act but that
Parliamentarians were governed by the
Financial Management of
Parliament Act 10 of 2009
and their own whistle blowing policy.
Cross-examination
[37]
During re-examination, Ms Tyawa
confirmed that she only learnt that Mr Bongo was an Advocate
recently. She stated that at Parliament
everyone is addressed as
“
Honourable Member”
and not by their titles such as Doctor or Advocate. In relaying to
the court the exact words used by Mr Vanara she stated “
Honourable
Mr Bongo offered me a bribe to collapse the inquiry”.
Ms
Tyawa was questioned by the Bench regarding what was reported to her
by Advocate Vanara in her own words, Mr Vanara
(“Mr
Bongo offered me a bribe to collapse the Inquiry”
).
This however was not part of her evidence-in-chief. She was unable to
explain why she omitted to mention the word “bribe”
in
her evidence-in-chief.
Vincent
Mokhoema’s testimony
[38]
Lieutenant Colonel Mokhoema (
Mokhoema
)
is in the employ of SAPS since 2007 and the investigating officer in
this matter. Mr John Steenhuisen submitted an affidavit alleging
that
Mr Vanara was bribed by Mr Bongo. Mr Steenhuisen’s affidavit
lacked essential information and thus, Lieutenant Colonel
Mokhoema
obtained statements from Mr Vanara, Mr Bongo and other witness
statements. When Mr Mokhoema obtained the statement from
Mr Vanara,
Mr Vanara relayed to him that when he was appointed as evidence
leader of the Inquiry Committee, he received numerous
calls from Mr
Bongo and they eventually met in his office on 10 October 2017. Mr
Vanara explained to him that Mr Bongo said that
he was sent from
Eskom in order to acquire the assistance of Mr Vanara by falling ill
or taking sick leave in exchange for money.
Mr Vanara refused to
render his assistance and reported the incident to the parliamentary
authority. Mr Mokhoema, having knowledge
that failure to report a
commission of corruption is an offence, questioned Mr Vanara
regarding his failure to report it to the
police. Mr Mokhoema
accepted Mr Vanara’s explanation that he had reported it to
Parliament.
When
he interviewed Mr Bongo, a prepared affidavit was submitted to him by
Mr Bongo marked Exhibit “F”. Mr Bongo stated
in his
affidavit that the scheduled meeting that had taken place between
himself and Mr Vanara was a legal discussion centred on
the possible
dead-lock on the parallel establishment of the State Capture Inquiry
by the Parliament as well as the Executive Head.
Mr Mokhoema could
refute Mr Bongo’s version made under oath.
Evaluation of
the State case
[39]
Mr Vanara is a single witness to the
incident that gave rise to the charges levelled against Mr Bongo. The
other State witnesses
were not present when the meeting between Mr
Vanara and Mr Bongo took place. They can only attest to what Mr
Vanara relayed to
them regarding the meeting between himself and Mr
Bongo.
[40]
Mr Vanara maintained throughout his
testimony that he did not know Mr Bongo as an Advocate. Mr Xaso
admitted that he knew Mr Bongo
to be an Advocate but that he could
not confirm whether other Members of Parliament knew Mr Bongo as an
Advocate. Ms Tyawa testified
that she never knew Mr Bongo as an
Advocate until very recently. However, Mr Phindela testified that
everyone knew Mr Bongo as
an Advocate and that is how he was often
addressed at Parliament. He confirmed that there was no need for him
to tell Mr Vanara
that Mr Bongo was an Advocate. This flies in the
face of Mr Vanara’s testimony that he did not know Mr Bongo was
an Advocate
and that Mr Phindela informed him that Mr Bongo was an
Advocate after 10 October 2017.
[41]
Mr Xaso testified that Mr Vanara told
him that Mr Bongo told Mr Vanara to “
name
his price”.
Further to that,
Mr Phindela said: “
All he told
me is that he was approached and offered a bribe. That is all he said
to me and Ms Tyawa”.
Ms Tyawa
maintained throughout examination-in-chief, cross-examination and
re-examination “
[T]hat Mr
Vanara said that he was approached by Honourable Mr Bongo to collapse
the inquiry”.
However, it was
only after the Bench touched on this issue again, that she made
mention of “bribe”, a pivotal point
which she left out in
her evidence-in-chief. Ms Tyawa was unable to explain satisfactorily
why “bribe” was not mentioned
at all in her evidence and
why her own evidence contradicted that of Mr Phindela in material
respects, notwithstanding that Ms
Tyawa, Mr Xaso and Mr Phindela were
together when Mr Vanara reported the incident of 10 October 2017.
[42]
Mr Vanara’s testimony is
contradicted by the testimony of the other witnesses and places his
credibility as a single witness
in question.
[43]
Furthermore, it must be noted that the
affidavit by Mr Bongo, handed up as Exhibit “F”, Mr Bongo
avers the following
at pg. 16-17:
“
[I]t
was around February 2017 or thereabout when I began to cordially
interact personally with the complainant on a collegial basis.
As we
both [are] individuals from [the] Advocacy profession we effortlessly
began to interact on issues of mutual interest in particular
legal
issues that may have a bearing in the execution of our duties in
Parliament… At the centre of this meeting were the
issues
around the possible legal dead-lock on the parallel establishment of
State Capture [I]nquiry by both Parliament and the
Executive Head.”
[44]
This statement was made by Mr Bongo for
purposes of the enquiry before the Ethics Committee which found no
misconduct on the part
of Mr Bongo. This is, with respect, a previous
consistent statement. It is consistent with Mr Bongo’s version
relating with
the purpose of the lawyer to lawyer discussions that he
had with Mr Vanara regarding the parallel processes of Inquiry.
[45]
It is not without significance, in my
view, that Lieutenant-Colonel Mokhoema did not investigate the
accused defence, namely that
the purpose of contacting Mr Vanara was
to engage him as a lawyer about the parallel processes referred to
above. Lieutenant-Colonel
Mokhoema also confirmed that Mr Bongo was
not involved in further activities relating to the complaint by Mr
Vanara after 10 October
2017. He confirmed that he is aware that
section 34 of the Act imposes a duty upon someone with knowledge of
corruption, or reasonable
suspicious thereof, to report same to the
Hawks/SAPS. The conclusion is inescapable that the investigating
officer did not believe
that Mr Bongo had committed any crime.
[46]
The investigating officer referred the
court to an affidavit deposed to by Mr John Steenhuisen, now a leader
of the DA in Parliament.
According to the investigating officer Mr
Steenhuisen said “
Vanara said
he was bribed”
.
This is factually incorrect. Indeed no such evidence was led before
me in court to that effect. Mr Hellens SC quite rightly argued
that
such incorrect information could only have come from Mr Vanara. This
is yet another version of what allegedly transpired between
Mr Vanara
and Mr Bongo on 10 October 2017.
[47]
Ms
Shihaam Lagkar’s office was situated next to Mr Vanara’s
office. It was put to Mr Vanara in cross-examination that
she would
say she saw Mr Bongo on many occasions in front of Mr Vanara’s
office. She was on the list of State witnesses and
accordingly the
court expected her to be called. She was however, not called as a
witness. The court should draw an adverse inference
that a witness,
who was available but not called, was not going to support the
State’s case.
[10]
Conclusion
[48]
Whether or not to grant the application
in terms of
section 174
of the
Criminal Procedure Act is
a discretion
to be exercised judicially.
[49]
Having
regard to the fact that I have already found that there is
insufficient evidence upon which a reasonable court, acting
carefully,
might convict, the only possible reason for refusing the
application at this stage can be the hope that the accused will
implicate
himself during his evidence. To do so will be a
manifest misdirection.
[11]
[50]
This case falls within the ambit of the
following
dictum
of Nuggent, JA in
Lubaxa
,
supra
at
707h – 708b:
“
Clearly
a person ought not to be prosecuted in the absence of a minimum of
evidence upon which he might be convicted, merely in
the expectation
that at some stage he might incriminate himself. That is
recognised by the common law principle that there
should be
‘reasonable and probable’ cause to believe that the
accused is guilty of an offence before a prosecution
is initiated
(Beckenstrater v Rottcher and Theunissen
1955
(1) SA 129
(A) at 135C-E), and the constitutional protection afforded
to dignity and personal freedom
(s 10
and
s 12)
seems to reinforce
it. It ought to follow that if a prosecution is not to be
commenced without that minimum of evidence,
so too should it cease
when the evidence finally falls below that threshold.”
[51]
The State’s evidence in this case
is far below this threshold referred to above.
[52]
It is my judgment that “Mr
Vanara’s evidence is not credible in some material respects. He
is a single witness. Therefore
his evidence must be clear and
satisfactory in all material respects. The evidence of other state
witnesses clearly does not corroborate
that of Mr Vanara in some
material respects. There are also material contradictions between Mr
Xaso, Mr Phindela and Ms Tyawa regarding
what Mr Vanara reported to
them on 10 October 2017.
[53]
The
section 174
application cannot be
refused in the hope that the accused person will incriminate himself
when he gives evidence, thereby closing
material defects in the
state’s case.
[54]
In the circumstances I make the
following order:
54.1) The
application in terms of
section 174
of the
Criminal Procedure Act is
granted.
54.2)
The accused, Advocate Bongani Bongo, is found not guilty and
therefore discharged.
_____________________________
HLOPHE,
JP
Legal representatives:
The State:
Adv T Du Toit-Smith
Adv
D Combrin
The Accused: Adv M
Hellens SC
Instructed
by JC De Jager Attorneys
Matter heard on:
15
February, 16 February, 19 February, 22 February, 24 February and 26
February 2021.
[1]
Of
the
Criminal Procedure Act, 51 of 1977
. The 212B notice is marked
exhibit “B1”.
[2]
S
v Lubaxa 2001(2) SACR 703 (SCA).
[3]
S
v Dewani 2014
(unreported,
WCC case no CC15/2014, 8 December 2014; 2014 JDR 2660 (WCC))
at para 8.
[4]
S
v Dewani 2014
(unreported,
WCC case no CC15/2014, 8 December 2014; 2014 JDR 2660 (WCC))
at para 13.
[5]
S
v Mpetha & Others 1983(4) SA 262.
[6]
2011
(2) SACR 437 (GSJ).
[7]
S
v Agliotti
2011 (2) SACR 437
(GSJ) at 456 i
n
fine
to
457b
[8]
S
v Dewani 2014
(unreported,
WCC case no CC15/2014, 8 December 2014; 2014 JDR 2660 (WCC))
at para 15. See also S v Lubaxa ,
supra
at para 8 above of this judgment.
[9]
Section
34 (1) – (2) of the Act provides the following:
“
34.
(1) Any person who holds a position of authority and who knows or
ought
reasonably
to have known or suspected that any other person has committed-
(a)
an offence under Part 1, 2,3 or 4, or section 20 or 21 (in so far as
it relates to the aforementioned offences)
of Chapter 2;
or
(b)
the offence of theft, fraud, extortion, forgery or uttering a forged
document,
involving an amount
of R100 000 or more, must report such knowledge or suspicion or
cause such knowledge
or suspicion to be reported to any police official.
(2)
Subject to the provisions of section 37(2), any person who fails to
comply with
subsection (l), is
guilty of an offence.”
[10]
S
v Texeira 1980 930 SA
[11]
S
v Lubaxa (
supra
)