Mokhesi and Others v S (45/2021) [2022] ZAFSHC 58; 2022 (2) SACR 326 (FB) (28 March 2022)

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[2022] ZAFSHC 58
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Mokhesi and Others v S (45/2021) [2022] ZAFSHC 58; 2022 (2) SACR 326 (FB) (28 March 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of Interest to other
Judges:       YES
Circulate
to Magistrates:
NO
Case
No: 45/2021
In
the matter between:
NTHIMOTSE
MOKHESI
Applicant
1/Accused 1
PHEANE
EDWIN
SODI
Applicant 2/ Accused 3
BLACKHEAD
CONSULTING (PTY) LTD
Applicant 2/ Accused 4
THABANE
WISEMAN ZULU
Applicant 3/ Accused 11
ELIAS
SEKGOBELA MAGASHULE
Applicant 4/ Accused 13
and
THE
STATE
Respondent
In
re:
THE
STATE
versus
NTHIMOTSE
MOKHESI
Accused 1
MAHLOMOLA
JOHN MATLAKALA

Accused 2
PHEANE
EDWIN
SODI
Accused 3
BLACKHEAD
CONSULTING (PTY) LTD

Accused 4
As
represented by accused 3
DIAMOND
HILL TRADING 71 (PTY) LTD

Accused 5
As
represented by Lindikhaya Mpambani
605
CONSULTING SOLUTIONS (PTY)
LTD
Accused 6
as
represented by Michele Antia Mpambani
SELLO
JOSEPH RADEBE

Accused 7
MASTERTRADE
232 (PTY)
LTD
Accused 8
ABEL
KHOTSO
MANYEKI
Accused 9
ORI
GROUP (PTY)
LTD
Accused 10
as
represented by accused 9
THABANE
WISEMAN
ZULU
Accused 11
SARAH
MATAWANE
MLAMLELI
Accused 12
ELIAS
SEKGOBELA
MAGASHULE
Accused 13
NOZIPHO
BELINA
MOLIKOE
Accused 14
THABISO
MAKEPE
Accused 15
ALBERTUS
VENTER
Accused 16
JUDGMENT
CORAM:
NAIDOO, J
HEARD ON:
21 & 22
FEBRUARY 2022
DELIVERED
ON:
28 MARCH 2022
[1]
These are civil proceedings arising from the criminal prosecution of
the sixteen (16) accused cited herein.
The accused are charged,
separately in some of charges and jointly in respect of other
charges, with seventy four counts, which include
fraud, corruption,
money laundering and various other statutory contraventions. Central
to many of the charges appears to be a contract
awarded by the Free
State Department of Human Settlements (FSDHS) to accused 3,4 and 5,
for the assessment and audit of homes with
asbestos roofing, referred
to as the Asbestos Project in the papers. The trail of payments made
in connection with or from the proceeds
of the Asbestos Project was
the subject of investigations which led to the accused being charged.
The evidence led at the Judicial
Commission of Enquiry into
Allegations of State Capture, Corruption and Fraud in the Public
Sector, including Organs of State and
chaired by Deputy Chief Justice
Raymond Zondo, is also a feature of the applications currently before
me. For convenience, I shall
follow the reference used by the parties
in the papers and refer to the Commission as the State Capture
Commission (SCC) or the Zondo
Commission.
[2]
Four separate applications served before me, having been brought by
accused 1, Nthimotse Mokhesi (Mokhesi),
accused 3 and 4, Pheagane
Edwin Sodi (Sodi) and Blackhead Consulting (Pty) Ltd (Blackhead) in
one application, the latter being represented
by Sodi, accused 11,
Thabane Wiseman Zulu (Zulu) and the fourth application by accused 13,
Elias Sekgobela Magashule (Magashule).
Mokhesi was represented by Adv
C Meiring, Sodi, Blackhead and Magashule were represented by Adv LM
Hodes SC, with Adv (Ms) T Govender
and Zulu was represented by Adv SS
Maakane SC, with Adv AN Tshabalala. The respondent (the state) was
represented by Adv N Cassim
SC, with Adv (Ms) S Freese and Adv (Ms) T
Ngubeni.
[3]
I mention that there have been a few appearances in court by the
accused persons for the purpose of pre-trial
hearings. The indictment
was served on the defence teams together with other documentation
over the months preceding these applications,
to enable the accused
to prepare for trial. A trial date has yet to be set. Although the
relief prayed for in each of the current
applications is similar, in
that they each seek, inter alia, the setting aside or quashing of
charges, stay of prosecution or being
excused from prosecution, there
are certain differences in the grounds upon which such relief is
claimed. It would, therefore, be
prudent to deal with each
application separately. I propose to summarise the case of each
accused and the relief sought, and thereafter
deal with the
evaluation of all the applications. All the applications are premised
on the allegation that the fair trial rights
of the accused, in terms
of section 35(3) of the Constitution have been infringed, while three
of the applicants allege that this
infringement arises as a result of
the charges in this matter being based on evidence they have given to
and at the State Capture
Commission.
[4]
The purposes for and establishment of the SCC have been extensively
set out in the papers and it unnecessary
to repeat it here. I shall
confine myself to the issues (relating to the SCC) raised in the
applications before me, as far as that
may be necessary. Mokhesi,
Sodi and Zulu relied on and claimed the privilege afforded to them in
terms of Regulation 8(2) of the
Regulations relating to the SCC,
alleging that the state is not entitled to use against them the
evidence emanating from the SCC,
as it is not permitted by Regulation
8(2). For completeness, I refer to the provisions of Regulation 8(1)
and 8(2) as they were in
February 2018 and thereafter the amendment
to Regulation 8(2):
“
(1)
No person appearing before the Commission may refuse to answer any
question on any grounds other
than those contemplated in section 3(4)
of the Commissions Act, 1947
(2)
No evidence regarding questions and answers contemplated in
subregulation (1), and no evidence
regarding any fact or information
that comes to light in consequence of any such questions or answers,
shall be admissible in any
criminal proceedings, except in criminal
proceedings where the person concerned is charged with an offence in
terms of section 6
of the Commissions Act 1947 (Act No. 8 of 1947),
or regulation 12”.
[5]
Regulation 8(2) was amended by a Proclamation dated 23 March
2018
to read as follows:
“
A
self-incriminating answer or a statement given by a witness before
the Commission shall not be admissible as evidence against that
person in any criminal proceedings brought against that person
instituted in any court, except in criminal proceedings where the
person concerned is charged with an offence in terms of section 6 of
the Commissions Act, 1947 (Act No. 8 of 1947)”
[6]
I turn now to deal with the individual applications.
MOKHESI
Mokhesi
is the suspended head of the Free State Department of Human
Settlements
.
I pause
to mention that his application as well as his Heads of Argument in
this matter were both filed out of the time frames prescribed
in the
Rules of Court and the Practice Directives of this Division. He
subsequently sought condonation for both and, as the respondent
and
other parties were not opposed to same, condonation was accordingly
granted for such late filing. Mokhesi seeks relief in the
following
terms:
“
1.
Declaring that the indictment, insofar as Accused 1 is concerned, is
premised on evidence obtained
from the Judicial Commission of Enquiry
into allegations of State Capture, Corruption and Fraud in the Public
Sector, including Organs
of State (“State Capture Commission”)
2.
Declaring that the State’s reliance on Accused 1’s testimony and
evidence from
the State Capture Commission renders any trial against
the applicant unfair and in breach of his fundamental right to a fair
trial
as envisaged by section 35(3) of the Constitution of the
Republic of South Africa Act 108 of 1996, as amended (“the
Constitution”);
3
Declaring that Accused 1 is excused from prosecution in terms of
Regulation
8(1) of the State Capture Regulations;
4.
In the alternative, the evidence given on behalf of Accused 1 at the
State Capture
Commission infringes his right to a fair trial as
provided for in terms of section 35 of the Constitution and may not
be relied upon
in any trial against Accused 1;
5.
Further/and alternative  relief;
6.
Costs of the application, including the costs of two counsel”.
[7]
One of Mokhesi’s primary complaints is that the charges against him
have their roots in the evidence
of one Mr Mxolisi Dukoana (Dukoana)
who made two appearances at the SCC and testified, on his second
appearance, about the Asbestos
Project, referring to it as the
“Asbestos Heist”. Mokhesi’s contention is that Dukoana’s
evidence has very little to do with
him, yet the police investigation
concerning him (Mokhesi) stems from Dukoana’s evidence. Mokhesi was
interviewed by investigators
from the SCC and in consequence of such
interviews, he alleges that he furnished two affidavits to the SCC.
In addition, he testified
on two occasions at the SCC, 28 August 2020
and 28 September 2020. Two days after his second appearance at the
SCC, he was arrested
in terms of a Warrant of Arrest, dated 4
September 2020
[8]
Mokhesi’s
contention is that the entire indictment is premised on the evidence
emanating from the SCC, which is in contravention
of Regulation 8(2)
as the latter provides that self-incriminating statements or evidence
given by a person before the SCC is not
admissible as evidence
against that person in criminal proceedings brought against him/her.
Therefore, his right to a fair trial,
as enshrined in section 35(3)
of the Constitution, has been infringed, with the consequence that he
has been “irreparably prejudiced”
in respect of the criminal
proceedings against him. He contends that the state delayed charging
him formally until after he testified
at the SCC, in order that it
could use his testimony to bolster its case against him. Therefore,
all the evidence obtained against
him via the SCC is inadmissible. He
contends that, as a result, he is excused from prosecution in terms
of Regulation 8(1) of the
SCC Regulations and in terms of section 35
of the Constitution, and is entitled to the relief he seeks.
[9]
In its Answering Affidavit, deposed to by the then Acting Director of
Public Prosecutions (DPP), Free
State, the respondent outlined the
material facts leading to the criminal charges being brought against
Mokhesi, and did the same
in the other three applications as well.
The state alleges that the FSDHS approached its counterpart in
Gauteng to participate in
an asbestos eradication project that the
latter had already embarked upon. The Gauteng Department of Human
Settlements (GDHS), although
having approved the FSDHS’s request on
4 August 2014, pointed out that its contract was due to terminate on
31 August 2014, and
suggested that FSDHS follow a competitive
procurement process, rather than a participation process.
Notwithstanding this, and without
following an open and transparent
procurement process, FSDHS appointed Sodi, Blackhead and the fifth
respondent, collectively known
as the Blackhead Consulting JV (the
JV), to undertake the Asbestos Project. Such appointment was based on
an unsolicited bid, which
was contrary to the procurement prescripts
applicable to FSDHS.
[10]   The
respondent further highlighted the lack of compliance with Treasury
Regulations, the knowledge that the project
could never have been
completed by 31 August 2014, that the party to whom FSDHS awarded to
contract, namely Blackhead Consulting
JV, was  not a party to
the GDHS project, and that a large portion of the contract price was
paid to the JV. The contract price
was Two Hundred and Fifty Five
Million Rand (R255 million), of which Two Hundred and Thirty Million
Rand (R230 million) was paid
to the JV, which did not undertake the
work itself but subcontracted it to the eighth respondent, who in
turn subcontracted it to
the tenth respondent. The work was
ultimately not completed by any party.
[11]   The
respondent decried Mokhesi’s application as “legally inept and
ill-conceived” as he seeks declaratory relief
in respect of the
indictment and evidence to be led, without having been confronted
with any evidence by the respondent. It is argued
that Mokhesi has
not set out any legal basis for the relief he seeks but relies on
conjecture and supposition. The respondent objects
to what it claims
is Mokhesi’s attempt to obtain a preview of the
viva voce
evidence of the state, to which he is not entitled, even as part of
his entitlement to a fair trial. It claims, in addition, that
he has
not shown that he provided to the SCC, either by way of his
affidavits or his evidence at the inquiry, any self-incriminatory
statements or evidence, which the respondent is precluded from using
against him.
[12]   The
respondent set out in great detail the manner in which it went about
securing evidence against Mokhesi. For reasons
that will become
apparent later in this judgment, I refrain from repeating all those
details here. The respondent contends that,
based on the
investigation undertaken by the team of investigators, the evidence
in its possession discloses a
prima facie
case against
Mokhesi, and the other accused persons in this matter, and that each
of them is aware of this, having been given access
to the docket,
from which it is evident that they have a case to answer.
[13]
I point out that in outlining the legal position in the Heads
Argument filed on behalf of Mokhesi, reliance was placed
on
Regulation 8(2) prior to its amendment in March 2018. This is clearly
incorrect as Regulation 8(2) in its amended form applies
to Mokhesi.
Therefore, only self-incriminating statements or evidence may not be
used in criminal proceedings against the person
making such
statements. Despite this being pointed out during the respondent’s
oral address, Mr Meiring chose not to reply to this
and the various
other points raised by the respondent, to demonstrate its contention
that the orders sought by Mokhesi are legally
inept, impermissible
and irregular.
SODI AND
BLACKHEAD
[14]
Sodi (accused 3) is a businessman and a director of Blackhead
(accused 4). The latter is represented by Sodi in the
criminal
matter. In this application, they seek orders in the following terms:
“
1.
Declaring that the indictment, insofar as accused 3 and 4 are
concerned, is premised on evidence
obtained from the Judicial
Commission of Enquiry into allegations of State Capture, Corruption
and Fraud in the Public Sector, including
Organs of State (“
State
Capture Commission”
);
2.
Declaring that the State’s reliance on Accused 3’s testimony and
evidence from
the State Capture Commission renders any trial against
these applicants unfair and in breach of their fundamental right to a
fair
trial as envisaged by section 35(3) of the Constitution of the
Republic of South Africa Act 108 of 1996, as amended (“
the
Constitution”
);
3.
Declaring that Accused 3 and 4 are excused from prosecution in terms
of Regulation
8(1) of the State Capture Regulations;
4.
In the alternative, the evidence given on behalf of Accused 3 and 4
at the State
Capture Commission infringes their fair trial rights as
provided for in terms of section 35 of the Constitution and may not
be relied
upon in any trial against Accused 3 and 4;
5.
Costs of the application.”
[15]   As
Mokhesi did, so did these accused set out a detailed history of how
the SCC came into being. It is not necessary
to repeat that here.
Sodi and Blackhead also complain that the criminal prosecution
against them has its genesis in the evidence
delivered by Mr Mxolisi
Dukoana at the SCC, particularly at his second appearance before the
SCC, when he testified about the “Asbestos
Heist”. Although
Blackhead Consulting JV and Mr Mpambani are mentioned several times
in Mr Dukoane’s testimony, Sodi claims that
Dukoane’s testimony
has very little to do with them. Sodi asserts that although he
testified on three occasions at the SCC, his
legal representative
expressly reserved his rights in terms of section 35 of the
Constitution. He complains that he was arrested
on 30 September 2020,
a day after his third appearance at the SCC, in terms of a warrant of
arrest that appears to have been authorised
on 4 September 2020, and
asserts that the timing of his arrest by the police, immediately
after he testified at the SCC indicates
how important his testimony
is to the police investigation.
[16]
Sodi attached copies of the statements and affidavits provided to the
SCC in which various details were furnished
in response to queries
raised by the SCC’s investigators. Transcripts of the oral evidence
he delivered at the SCC on 7 August
2020, 19 August 2020 and 29
September 2020 were also attached to the papers. In setting out the
legal issues in this matter, Sodi
alleges that the entire indictment
against him and Blackhead is premised on evidence emanating from the
SCC. This is in conflict
with Regulation 8(2), (which I set out
earlier in this judgment), in terms of which self-incriminating
statements or answers may
not be used against the person making such
a statement, in criminal proceedings that are instituted against such
a person. Notably,
while certain provisions of Regulation 8(2) are
underlined for emphasis, the words “
self-incriminating answer”
are not. I will deal further with this later. He also alleges that
his right to a fair trial as entrenched in section 35(3) of the
Constitution have been violated as a result of the grounds for and
manner in which the charges against him and Blackhead have been
brought.
[17]   I
pause to mention that Mokhesi’s application is almost identical to
that of Sodi and Blackhead. The respondent’s
response to Sodi’s
Founding Affidavit, in its Answering Affidavit, is similarly the same
as its answer in the Mokhesi application.
It sets out the background
to this matter in similar terms as I have indicated in paragraphs [9]
to [12] above. In dealing with the
relief sought by Sodi and
Blackhead, the respondent asserts that the declaratory relief is
incompetent and “nonsensical”, they
seek a determination in
respect of the very charges they face, that these emanate from
evidence given at the SCC. There is in any
event nothing remiss, the
respondent argues, about a criminal prosecution ensuing from evidence
given at the enquiry, as this is
one of the purposes of such a
Commission of Enquiry. Regulation (8)(1) and 8(2) do not come to the
assistance of the accused because
Regulation 8(2) specifically
prohibits the use of self-incriminatory statements in criminal
proceedings, and does not provide a blanket
prohibition against all
evidence given at the inquiry.
[18]   As
with Mokhesi, the respondent sets out in great detail the manner in
which evidence against Sodi and Blackhead
was uncovered, in order to
demonstrate that the state’s case is not based on the evidence
emanating from the SCC. I will not deal
with such evidence at this
stage for reasons that will become apparent later. The respondent
asserts that Sodi and Blackhead are
improperly attempting to obtain a
preview of the
viva voce
evidence that the state will lead at
the trial. Not even their fair trial rights in terms of the
Constitution allows them this. Should
they wish to challenge or
object to any evidence on the basis that it is inadmissible, the
proper forum to do so is before the trial
court, whose discretion
will be unduly hamstrung by the declaratory relief sought by these
accused.
[19]
Both parties filed extensive Heads of Argument and presented lengthy
oral arguments. The arguments on behalf
of Sodi and Blackhead
repeated the submissions made in their papers, reiterating that the
criminal prosecution arises from the evidence
delivered at the SCC,
and that the state is prohibited from using such evidence against
Sodi and Blackhead. I pause to mention that
the submissions on behalf
of these accused consistently and continuously emphasise that
statements given at the SCC are not admissible
in criminal
proceedings, and gloss over the qualification that such statements
must be self-incriminatory. I will deal further with
this later.
[20]
The respondent, in its response, raises this point that the
statements must be self-incriminating in
order to be excluded in
criminal proceedings. Mr Cassim also asserted that there was nothing
self-incriminating in Sodi’s evidence,
nor did he point out which
parts of his evidence were self-incriminatory. His evidence was to
the effect that he did nothing wrong.
In any event, Mr Cassim
submitted that it is the trial court to whom the objection that
evidence is self- incriminatory must be addressed,
and the trial
court will decide whether it is or not. This court cannot be asked to
do so.
ZULU
[21]
Thabani Wiseman Zulu was at the times relevant to the charges in this
matter the Director General of the National
Department of Human
Settlements. He is accused 11 in the criminal matter and in this
application, seeks orders in the following terms:
“
1.
The offences for which the Applicant has been charged, as accused
number
11, be and are hereby quashed; alternatively
2.
The applicant is granted stay of prosecution; alternatively
3.
The matter of the State v Mokhesi & Others; of which the
Applicant is
accused be
struck of the roll;”
[22]
Zulu, like the other accused persons, faces multiple counts of fraud,
corruption and money laundering,
a number of which are in terms of
the provisions of the Prevention and Combatting of Corrupt Activities
Act 12 of 2004 (PRECCA).
In counts 1 to 8 the accused is charged with
fraud. As a third alternative to counts 1 to 8, the accused is
charged with contravening
section 34 of PRECCA, the relevant
provisions of which read thus:
34 Duty
to report corrupt transactions
(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
the police official in the Directorate for Priority Crime
Investigation referred to in
section
17C
of
the
South African Police Service Act, 1995
, (
Act
68 of 1995
).
(2)
Subject to the
provisions of section *37 (2), any person who fails to comply
with
subsection (1), is guilty of an offence
.
*(Section 37(2)
provides that section 34(2) shall come into operation on 31 July
2004)
[23]
Non-compliance by the respondent with section 27 of PRECCA is relied
upon by Zulu as one of the main
grounds for seeking the relief that
he does. The relevant provisions of section 27 read as follows:
27 Authorisation
by National Director, Deputy National Director or
Director
to institute proceedings in respect of certain offences
The
institution of a prosecution for an offence referred to in section 17
(1),
23(7)
(b)
or
34 (2), must be authorised in writing by the National Director, a
Deputy National Director of Public Prosecutions or the
Director of
Public Prosecutions concerned and only after the person concerned has
been afforded a reasonable opportunity by the investigating
or
prosecuting authority, as the case may be, to explain, whether
personally or through a legal representative-
(a)
in the case of
section 17 (1), how he or she acquired the private interest
concerned;
(b)
in the case of
section 23 (7)
(b)
,
how he or she acquired the property or
resources
concerned; or
(c)
in the case of
section 34 (2), why he or she failed to report in terms of
section
34 (2).
[24]
Zulu contends that the charges he faces for contravention of PRECCA
are improperly before court and are
ultra vires
. This
assertion is based on the fact that he was arrested on 1 October
2020, while the written authorisation from the DPP is dated
3
November 2020. Section 27 requires the written authorisation to be
given after the person concerned has been given a reasonable
opportunity to offer an explanation in respect of the various
situations set out in that section. He was never afforded such an
opportunity,
and contends that the written authorisation by the DPP
is, therefore, invalid. He alleges that the prosecutor intimated that
the
state did not want to alert the suspects of their arrest,
indicating that the state took a conscious decision not to comply
with
the peremptory provisions of section 27.  Zulu further
alleges that the main counts relating to the contravention of PRECCA
are improperly before this court. Therefore, the alternate charges
cannot stand. The only solution, therefore, is the relief he seeks
in
this application.
[25]
With regard to the rest of the charges against him, Zulu alleges that
his fair trial rights in terms
of section 35 of the Constitution have
been infringed as a result of those charges being preferred against
him.   This
is so because the charges are based on answers
he gave to the investigators of the SCC and on oral evidence he gave
at the SCC. He
too adopts the stance that none of the evidence
emanating from the SCC can be used against him, albeit that he cites
Regulation 8(2)
in his papers. He did not deal with the issue of
self-incriminating evidence or indicate which parts of his written
answers or oral
testimony were self-incriminating.
[26]
The respondent’s Answering Affidavit was very similar to those it
filed in the applications of Mokhesi and Sodi,
which I have dealt
with earlier, in respect of the background, material facts leading to
the charges in this matter and its response
to the allegations that
the evidence emanating from the SCC are inadmissible against Zulu in
the criminal proceedings. The respondent
points out that Zulu gave no
indication of what part of his evidence or statements were
self-incriminatory as only those parts of
his evidence would be
inadmissible against him. He placed only one document before court,
being a letter from the SCC investigators
and his responses thereto,
which were not under oath. He cannot claim blanket privilege, as that
is not afforded to him in terms
of the SCC Regulations.  The
evidence against Zulu, argues the respondent, emanates from payments
of large amounts of money,
by accused 3 and 4 (Sodi and Blackhead),
for his benefit to a motor car dealer. This was the basis of the
questions by the investigators,
indicating that this evidence was
already in their possession before Zulu answered their questions.
[27]
With regard to the non-compliance with section 27 of PRECCA,
the respondent argues that the section must be given a “business-like
and common-sense interpretation”, as it does not afford the accused
a reasonable opportunity to be heard in circumstances where
the
accused is facing multiple charges. The requirement of a “reasonable
opportunity” must be read to indicate that the state
is allowed to
conduct further investigations. Hence the provisions of section 27
are there for the benefit of the state and not the
accused.
[28]
If it were interpreted otherwise, then it would be possible for the
accused to require of the State to
reveal its hand even before it
drafted the indictment. This would lead to a grave injustice and make
prosecutions for corruption-related
crimes in the public sector
impossible. Therefore, that provision should be read as directory and
not peremptory. The other possible
consequence of giving Zulu the
opportunity to explain, would be that he could claim that the state
has deprived him of his right
against self-incrimination. The
respondent argues that even if it is wrong in its interpretation of
section 27 of PRECCA, the issue
of whether or not the DPP’s
authorisation is premature ought to be raised by the accused as a
special plea at the commencement
of the trial, and not by way of
preliminary civil proceedings.
MAGASHULE
[29]
As indicated earlier, Elias Sekgobelo Magashule is the 13
th
accused in the criminal proceedings. He is also the former Premier of
the Free State, and the criminal charges against him emanate
from
certain events/transactions that occurred during the period of his
tenure as Premier.  He seeks orders in the following
terms:
“
1.
Declaring that the State has not complied with section 27 of the
Prevention and Combatting of Corrupt Activities
Act 12 of 2004, as
amended (“PRECCA”) and as read with section 34 thereof
2.
Declaring that Ms Moroadi Cholota was never a state witness,
alternatively is a defence witness;
3.
Declaring that the State’s conduct, insofar as Ms Cholota is
concerned and/or the manner in which the
prosecution has been
conducted to,
prima facie
, constitute prosecutorial
misconduct;
4.
Declaring that the Applicant/Accused 13 was not an “
executive
authority”
at the relevant time as defined in
section 1(b)
of
the
Public Finance Management Act 1 of 1999
, as amended (“
PFMA”
);
5.
Compelling the state to disclose the list of witnesses which
specifically implicate the Applicant/Accused
13 in any and all of the
charges as contained in the indictment; and
6.
Declaring that the Applicant/Accused 13 is entitled to know the case
that he is required to meet before
he pleads to the envisaged
charges.
7.
Declaring that the State does not have a prima facie case against
Applicant/Accused 13 which is capable
of sustaining a successful
prosecution.”
[30]
In support of the relief he seeks, Magashule alleges that the
investigation and the prosecution against
him
arises from the evidence delivered by Mr Mxolisi Dukoana (Dukoane) at
the SCC during his
appearance before the Commission on 5 April 2019
and 27 August 2019, and quotes extensively from the statement made by
Dukoane to
illustrate this. In further substantiation, he alleges
that the first instruction in the investigation diary of the docket
is on
10 October 2019, and that the record of Dukoane’s evidence is
contained in the docket. Magashule did not testify at the SCC.
[31]
With regard to Ms Moroadi Cholota (Cholota), Magashule explains that
she was his Personal Assistant from
August 2013, while he was Premier
of the Free State, until he vacated that position in around March
2018. She provided a statement
to the SCC following allegations by
Dukoane of corrupt dealings at the office of the Premier, in which
Cholota was involved. She
testified at the SCC. Magashule points out
that Cholota consulted the same attorneys as he did, and that such
attorneys assisted
her in the preparation of her statement, and
accompanied her when she testified at the SCC. In his Founding
Affidavit, Magashule
provides extensive details about the conduct of
the police and the prosecutor, to demonstrate what, in his view, was
improper conduct
on the part, especially of the prosecution, in
alleging that Cholota was a state witness. It is not necessary to
traverse such details,
as subsequent events seem to have overtaken
some of the relief prayed for. This explanation is assumed to be in
support of prayer
2 in the Notice of Motion.
[32]
In dealing with the criminal charges against him relating to certain
funding which came from Mr Ignatius
Mpambani, the deceased director
of accused 5, which was involved in the Joint Venture in the asbestos
project, he avers that there
is no evidence linking him to the tender
process, which resulted in the JV being awarded the contract. As
Premier he was not “even
remotely” involved in the tender
process.
[33]
With regard to the charge in terms of
section 34
of PRECCA, he alleges that he is not the accounting authority in
terms of section 50 of the Public Finance Management Act 1 of 1999
(PFMA) and is therefore under no duty and bears no obligation to
report any suspicious transactions, nor were there any suspicious
transactions that he was aware of. He also repeats the same narrative
that the other accused did in respect of non-compliance with
section
27 of PRECCA, alleging that he was never called on to give an
explanation, as required by the statute. The prosecutor, at
the
pre-trial hearing on 3 November 2021 admitted that section 27 was not
complied with. The state, he argues must be called to explain
its
“misconduct”.
[34]
Magashule surprisingly deals extensively with
“prosecutorial misconduct”, in an application such as this,
providing a great deal of irrelevant detail for current purposes. He
complains essentially about the conduct of the prosecutor assigned
to
this matter, in initially alleging that Cholota was a state witness
and thereafter (at the pre-trial hearing on 3 November 2021),
declaring that she will be charged as an accused in this matter. He
also alleges that the prosecution against him, and the timing
thereof, is politically motivated. I refrain from dealing with these
details, for reasons that will become apparent later in this
judgment.
[35]
The introduction to the respondent’s Answering Affidavit was in the
same vein as in the other three
applications, which I have set out
earlier in this judgment. A point that the respondent makes in its
introductory remarks in answer
to the relief claimed by Magashule is
that he seeks only seven declaratory orders, and no substantive
relief. Therefore, the application
is of an academic nature and the
true reason for the application is for Magashule to obtain from this
court a legal opinion or a
preliminary ruling on one of the
alternative charges brought against him, on certain of the evidence
that will serve before the trial
court and on the fairness of his
criminal trial. The respondent argues that this is impermissible and
should not be countenanced
by the court, as all of the contentions by
Magashule should be raised in his criminal trial before the trial
court, which is properly
placed to determine their merit or
otherwise, in view of all the relevant evidence.
THE
LAW
[36]
The Criminal Procedure Act 51 of 1977 (CPA) regulates all aspects of
criminal proceedings, including the manner in
which charges against
an accused person are to be formulated, as well as the manner in
which an accused person can exercise his right
to challenge such
charges. The provision that this court draws guidance from is section
85 of the CPA, which in my view, should be
the starting point in
deciding this matter. It reads as follows:
“
Objection
to charge
(1)
An accused may, before pleading to the charge under section
106, object
to
the charge on the ground-
(a)
that the charge does
not comply with the provisions of this Act relating to
the
essentials of a charge;
(b)
that the charge does
not set out an essential element of the relevant
offence;
(c)   that
the charge does not disclose an offence;
(d)
that the charge
does not contain sufficient particulars of any matter
alleged
in the charge: Provided that such an objection may not be raised to a
charge when he is required in terms of section 119 or
122A to plead
thereto in the magistrate's court; or
(e)  that
the accused is not correctly named or described in the charge:
Provided
that the accused shall give reasonable notice to the prosecution of
his intention to object to the charge and shall state
the ground upon
which he bases his objection: Provided furt
her that the requirement of
such notice may be waived by the
attorney-general or the prosecutor, as the case may be, and the court
may, on good cause shown,
dispense with such notice or adjourn the
trial to enable such notice to be given.
(2) (a) If
the court decides that an objection under subsection (1) is well-
founded,
the court shall make such order relating to the amendment of the
charge
or the delivery of particulars as it may deem fit.
(b)
Where the prosecution fails to comply with an order under
paragraph
(a)
,
the
court may quash the charge.”
[37]
Section 85 provides an accused person with the means to have charges
against him/her quashed, before he pleads to
such charge or charges.
Where the state is not willing to furnish certain particulars
requested by an accused in order to clarify
aspects of the charge,
section 85 provides him with the opportunity to obtain such
particulars by way of a court order. The accused
is therefore,
provided with adequate means to challenge the charges preferred
against him in the criminal proceedings, and such means
are to be
utilised as part of the criminal proceedings. Therefore, if an
objection to a charge is upheld, and the amendment thereof
by the
state does not cure the defect or shortcoming, the court will quash
the charge.
[38]
The court tasked with adjudicating a criminal trial is the forum
which must be approached with regard to challenges
or objections
relating to criminal charges, during the course of the criminal
trial. This includes constitutional challenges to charges
or
allegations that an accused person’s fair trial rights guaranteed
in section 35(3) of the Constitution have been infringed.
A long line
of cases in our courts have entrenched the well-established principle
that preliminary or premature litigation, especially
in criminal
matters, where civil courts are approached for relief in respect of
criminal charges, should be discouraged. In
Moyo
and Another v Minister of Justice and Constitutional Development and
Others
2018 (2) SACR 313
(SCA)
,
the Supreme Court of Appeal (SCA) dealt with two separate matters,
emanating from two different Regional Courts where the appellants
sought declaratory orders for the constitutional invalidity of
provisions of the
Intimidation Act 72 of 1982
. Neither of them had
pleaded to the charges and their trials were still pending in the
Regional Court. Their trials were postponed
pending the outcome of
the proceedings in the SCA.
[39]
In dealing with procedural issues, Wallis JA, writing for the
majority, dealt, in paras [156] to [157], with the issues
of the
delays in finalising trials, the timing and procedure to raise
challenges and the forum in which it must be done. At para
156, the
court decried the delay in the trials of the appellants of
approximately six and five years respectively, as a result of
these
proceedings and had this to say:
“……
This
is most unsatisfactory, as it means that their criminal trials have
not been brought and concluded without undue delay, as required
by s
35(3)
(d)
of the
Constitution. It has not only created a situation where the criminal
charges continue to hang over their heads, but is
also a denial of
justice to those who made the allegations on which those charges
rest. They are legitimately entitled to ask
why their allegations
have not been brought before a court and their complaints heard and
determined by an impartial judicial officer.
[40]
In the context of enforcing the right to a fair trial guaranteed by
section 35(3) of the Constitution the court,
at para [157] questioned
why issues germane to criminal proceedings and governed by the CPA,
which is the constitutionally compliant
statute are canvassed in
civil proceedings. The court also dealt, in para [158], with the
appellants’ response to this question
by way of the following
dicta:
“
[157]
In s 35 the Constitution guarantees a range of rights to arrested,
detained and accused persons. Section 35(3) guarantees to
all accused
persons the right to a fair trial. That is secured in practice by the
provisions of the CPA. The appellants do not seek
to impugn the
provisions of the CPA in any way, yet they are seeking to assert
their fair-trial rights before a civil court. That
should give pause
for thought. Why are issues germane only in the context of criminal
proceedings being canvassed and determined
in civil proceedings and
not in the constitutionally compliant forum, and in accordance with
the constitutionally compliant statute,
provided for the adjudication
of criminal cases?
[158]
The appellants' response to this question is to say that
the Constitutional Court has held in *
Savoi
that
they have standing to bring the present proceedings.
Savoi
involved
confirmation proceedings where the Constitutional Court was obliged
to accept jurisdiction. The issue arose indirectly
because there was
also an application for leave to appeal against the High Court's
refusal of orders of constitutional invalidity
in respect of
certain portions of the legislation under consideration. In the
present case the issue is not one of standing,
but solely one of
timing and procedure. At an appropriate stage and in appropriate
proceedings a person charged with a statutory
offence obviously has
standing to challenge the constitutionality of the statute under
which they have been charged. The concern
in this case is that
it has been done outside the ambit of the criminal proceedings, which
is the only place where the constitutionality
of the legislation is
in issue. It is an abstract challenge and, as Madlanga J rightly said
in para 13 of
Savoi
, courts generally and rightly treat
abstract challenges with disfavour. As Innes CJ put it
in
Geldenhuys & Neethling v Beuthin
1918 AD 426
at 441:
'After all, Courts of Law exist for the
settlement of concrete controversies and actual infringements of
rights,
not to pronounce upon abstract questions, or to advise upon
differing contentions, however important.'”
[*
Savoi
and Others v National Director of Public Prosecutions and
Another
2014
(1) SACR 545 (CC)
;
2014 (5) SA 317
;
[2014] ZACC 5)
para 13].
With
regard to premature litigation see also
Lodi v MEC for Nature
Conservation and Tourism, Gauteng, and Others 2005(1) SACR 556 (T)
and
Wilkinson and Another v National Director of Public
Prosecutions and Others 2019(2) SACR 278 (GP)
[41]
The Constitutional Court (CC) has pronounced itself on several
occasions with regard to the right to a fair trial
as well as the
issue of preliminary litigation. In
S v Shaik 2008(2) SA 208 (CC),
the court dealt with the issue of fairness of the trial and held at
para 43:
“
It
will be convenient to restate the principles employed by a court in
determining the fairness of a trial. The applicants stress
that they
place their reliance on the general right to a fair trial, which, as
this court has held, extends beyond those specific
rights enumerated
in s 35(3)
(a) - (o)
of
the Constitution. The right to a fair trial requires
a substantive, rather than a formal or textual approach. It
is
clear also that fairness is not a one-way street conferring an
unlimited right on an accused to demand the most favourable
possible
treatment.”
The
court concluded its remarks, citing para 29 of
Sv Jaipal 2005(4)
SA 581 (CC)
which states that
“
A
fair trial also requires –
fairness to
the public as represented by the State. It has to instil confidence
in the criminal justice system with the public, including those
close to the accused, as well as those distressed by the audacity and
horror of crime.”
[42]
In
Thint (Pty)
Ltd v National Director of Public Prosecutions and Others; Zuma v
National Director of Public Prosecutions and Others
[2008] ZACC 13
;
2008 (2) SACR 421
(CC)
, the court
was called upon to decide on the constitutionality of certain
warrants. The court had occasion in para 65 to deal with
the issue of
preliminary litigation. The court said, in essence, that preliminary
litigation should be discouraged if it appears
that such litigation
has no other purpose than to circumvent the application of section
35(5) of the Constitution. Such litigation
wreaks havoc with the
ability of the prosecution to fulfil its duties, in that it must on
the one hand resist preliminary litigation
and on the other ensure
that trials commence promptly. The court held that generally
disallowing such litigation would ensure that
the trial court decides
the pertinent issues, which it is best placed to do, and would ensure
that trials started sooner rather than
later. The court cautioned
that the court’s doors should never be completely closed to
litigants as there may well a need for a
victim to engage in
preliminary litigation to enforce his rights, for example where a
warrant is clearly unlawful and the trial is
only likely to commence
far into the future. But in the ordinary course of events, if the
purpose of the litigation appears to be
merely the avoidance of the
application of section 35(5) or the delay of criminal proceedings,
all courts should not entertain it.
The trial court would then be in
a position to consider the relevant interests of all parties
concerned. This approach would serve
to regulate the conduct of the
state in discouraging it from acting unlawfully in the application of
section 35(5), thereby attracting
the possibility of civil and
criminal liability.
[See
also
Van Der Merwe V National Director of Public Prosecutions
2011(1) SACR 94 (SCA)
, in which it was held that where a court is
faced with unmeritorious litigation designed to delay or avoid having
to plead in a criminal
trial or to pre-empt a consideration by the
trial court of the admissibility of evidence in terms of section
35(5), that court should
refuse an order that would encourage
preliminary litigation].
[43]
Against this sketch of the legal position, I turn to examine the
relief sought by the applicants in this matter.
The hallmark of all
four applications is that the accused have not yet pleaded to the
charges against them, yet each seeks declaratory
orders without any
evidence being led against any of them. They have given no indication
of why these challenges in respect of the
charges and the evidence to
be presented are being brought before this court and not the court
that will hear the trial, which is,
to use the words of the court in
Moyo
, the constitutionally compliant forum. Each one appears
to have simply ignored the provisions of section 85 and other
relevant provisions
of the CPA, which is the constitutionally
compliant statute, promulgated specifically to deal with all aspects
of criminal proceedings.
[44]
The court has the discretion to grant declaratory orders, after due
consideration of all the relevant circumstances.
One of the factors
to be considered is whether the issue raised before it is
hypothetical, abstract or academic. If the answer to
that is in the
affirmative, then the court will decline to grant a declaratory
order. It is not the court’s function to give legal
opinions or
make pronouncements on abstract or academic issues or questions. This
was confirmed as long ago as 1918 in the case of
Geldenhuys
& Neethling v Beuthin
,
cited with approval
in the matter of
Moyo
referred to above. That position remains relevant to this day. With
regard to the **two-stage test for whether a declarator should
be
granted, my view is that the test is applicable in civil matters and
not in a matter such as this, which falls into the category
of
preliminary litigation, relating to criminal proceedings. The latter
is regulated by the CPA, with the criminal trial court being
the
correct forum to decide the issues in respect of which a declarator
is sought in this matter.
[**
The two stage test was expounded in In
Durban
City Council v   Association of Building Societies
1942
AD 27
where the
court, per Watermeyer JA
,
with reference to a
section worded in identical terms, said at 32
:
'The
question whether or not an order should be made under this section
has to be examined in two stages. First the Court must be
satisfied
that the applicant is a person interested in an ''existing, future
or contingent right or obligation'', and then,
if satisfied on that
point, the Court must decide whether the case is a proper one for the
exercise of the discretion conferred on
it.'
See
also Cordiant Trading CC v Daimler Chrysler Financial Services (Pty)
Ltd 2005(6) SA 205 (SCA), which cited the
Durban City Council
case
with approval.]
[45]
Upon a consideration of the relief prayed for by each accused and the
grounds upon which such relief is sought, it
is clear that this court
is being called upon to consider these applications in a vacuum,
without the benefit of knowing the full
extent of the evidence that
will actually be led against each accused, so that a proper
assessment of all relevant evidence and circumstances
is not possible
at this stage. What is clear is that, on the papers, the state has an
arguable case in respect of the grounds and
relief claimed by the
accused. It is for this reason that I refrained from dealing with the
state’s exposition of the case it claims
to have against each
accused. It is for the same reason that I am of the view that it
would not be appropriate for this court to
consider the merits of
each accused’s application. I will elaborate briefly on my reasons
in respect of each application.
[46]
Mokhesi relies almost exclusively on the assertion that the case
against him is based on evidence arising from the
SCC, reliance on
which is prohibited by the Regulations to the SCC, therefore the
indictment is unlawful, and he should be excused
from prosecution.
Reliance by the state on testimony arising from the SCC inquiry
infringes his fair trial rights and may not be
used against him. I
pointed out earlier that Mokhesi places reliance on the previous
incarnation of Regulation 8(2), which prohibits
the use of any
evidence emanating from the SCC against a person criminally charged.
The new incarnation of that Regulation restricts
the prohibition to
self-incriminating evidence.
[47]
Mokhesi did not correct his position, even when given the opportunity
to do so. There is overlap in the relief he
seeks, but most
significantly, all his challenges fall squarely within the purview of
the trial court, which would be is in the best
position to determine
the matter. The trial court will be able to fully canvass the
assertions of both the accused and the state,
as they appear in these
papers, supplemented with all manner of necessary evidence, which are
not in these papers, and which limits
the ability of this court to
deal with the matter meaningfully and fairly. The trial court could,
for example, engage the tool of
a trial-within-a-trial to determine
the admissibility of disputed evidence, which this court is unable to
do.
[48]
Much of what I said in my introductory remarks in paras [43] to [45]
above and in relation to the Mokhesi application
finds equal
application to the other three applications. I pointed out earlier
that the Mokhesi application is almost identical to
the Sodi
application. Even the relief they claim is similar. Therefore, I do
not intend to repeat all that I have already said above,
as it also
finds application in the Sodi application. I mention one of the
points I raised earlier, in respect of self-incriminatory
evidence.
The respondent alleged that although Sodi provided the statements he
made to the SCC investigators as well as transcripts
he has not
pointed out which parts of his statements or evidence before the SCC,
are self-incriminatory.
[49]
This is indeed so, and I remark, without making any finding that in
the absence thereof, it appears as if the state
can rely on such
evidence, without breaching Regulation 8(2). I am, however, aware
that the trial court may view this differently,
depending on what
evidence and arguments are placed before it, should this issue be
raised at the trial. In my view, all the relief
that Sodi contends
for, ought to be raised at the criminal trial. I earlier indicated
that in the Sodi application, while some parts
of Regulation 8(2) of
the SCC Regulations were underlined for emphasis, the words
“
self-incriminating answer”
were not. This trend continued
in the Heads of Argument and the oral argument in court on behalf of
these accused. The impression
that is created is that attention is
being deflected away from the respondent’s assertion that it can
and is entitled to use evidence
emanating from the SCC.
[50]
With regard to the application by Zulu, the above comments apply. The
respondent’s response to Zulu’s application
is in a similar vein
to the other applications. What should be mentioned is that Zulu,
like Magashule, faces a charge of contravening
section 34 of PRECCA,
which is the third alternative to counts 1-8 which relate to fraud.
Zulu’s contention is that the respondent’s
non-compliance with
section 27 of PRECCA is fatal to the charges against, as he was not
given the opportunity to render the explanation
envisaged in section
27. Extensive arguments were put forward in this regard and the court
enquired of Mr Maakane, who appeared for
Zulu, whether his only
complaint was the state’s non-compliance with section 27, to which
he replied in the affirmative.
I point out that it is only that
third alternative count to Counts 1 to 8, which relates to the
contravention of section 34 of PRECCA.
All the other charges in terms
of PRECCA relate to different sections of that Act, to which section
27 does not apply. It would appear
to me therefore, that it is not
appropriate for this court to even entertain the broad relief that
Zulu seeks.
[51]
With regard to the Magashule application, he applies only for
declaratory relief. My remarks in para [44] apply to
this application
as well. In addition, I should point out that some of the relief
prayed for Magashule has become moot and/or academic,
for instance,
prayers 2 and 5. The respondent has indicated that Ms Cholota is
being charged as an accused in this matter. Therefore,
she can no
longer be regarded as a defence or state witness. The state also
alleges that a list of witnesses has been provided to
Magashule,
which was not disputed by Magashule. With regard to his request that
a list of the witnesses specifically implicating
him is a matter only
the trial court can deal with, if it is of the view that such a
request is permissible. The argument raised
by the respondent in
respect of the interpretation of section 27, which I have detailed
above, in respect of prayer 1, applies equally
to this application as
it does to the Zulu application. As with the other applications, the
orders that Magashule seeks are matters
that should be addressed to
the trial court. It is for this reason that I hold the view that it
would not be appropriate for this
court to deal with the merits of
this application.
[52]
In summary, the four applications before me fall into the category of
preliminary litigation arising from criminal
proceedings. The
established practice in our law is that such litigation is to be
discouraged as accused persons should not be allowed
to gain an
unfair advantage. The notion of a fair trial entails fairness to both
the accused and the state. Refer to the
Shaik
case above.
This  court is called upon, in addition, to decide these
applications in isolation to all the relevant facts and
circumstances
which the trial court would be privy to. In my view these are civil
motion proceedings, where if the *Plascon-Evans
Rule were to be
applied, the matter should be decided on the respondent’s version,
together with such aspects of the respondent’s
version that the
applicant agrees with or does not dispute. From what I have said it
is obvious that there are serious disputes of
fact which cannot be
resolved on these papers. For these and all the other reasons I have
set out above, it is not appropriate for
this court to entertain
these applications and they must each fail.
[*
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A)
]
[53]
There is another matter that bears mention. The respondent brought,
in the Sodi application, an application to strike
out certain
paragraphs of Sodi’s Founding and Replying Affidavits. These were
paragraph 67 of the Founding Affidavit and paragraphs
7.4 and 24 to
27 of the Replying Affidavit. The Notice of Motion, with the Founding
Affidavit appear to have been filed with the
Registrar of this court
on 13 January 2022, although the Founding Affidavit was deposed to on
18 November 2021 and the Notice of
Motion was signed in Johannesburg
on 19 November 2021. The respondent’s Answering Affidavit was
deposed to and served on 7 December
2021. The copy of Sodi’s
Replying Affidavit in the court file was deposed to on 15 December
2021. It does not bear the date stamp
of the Registrar of this court,
nor proof of service on the respondent. The application to strike out
was served and filed on 19
January 2022.
[54]
Paragraph 67 of the Founding Affidavit cites the case of
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma 2021(5) SA 1 (CC)
which dealt with the
interpretation of Regulation 8 of the State Capture Commission
Regulations. Sodi quoted paragraphs 93 to 109
of the judgment. The
respondent, in its answer to paragraphs 66 and 67 of the Founding
Affidavit, said the following in paragraph
68 of the Answering
Affidavit:
“
68.1
Sodi refers to section 35(3) of the Constitution and at least one
judgment.
68.2
As these are not issues that I am required to answer to in an
answering affidavit, legal argument will be addressed
to this Court
in regard thereto at the hearing.
68.3
I point out, however that paragraph 109 of the judgment referred to
puts paid to any argument that Sodi and
Blackhead Consulting may wish
to make about having successfully (or unsuccessfully) claimed their
privilege before the inquiry.”
[
55]
Paragraphs 7.4 and 24 to 27 of the Replying Affidavit deal with the
alleged conduct of Mr De Nysschen the prosecutor
assigned to
prosecute this matter, in making certain remarks to the court dealing
with the pre-trial hearing on 3 November 2021 and
the manner in which
that issue was dealt with by the Acting DPP, Adv Somaru.  The
state alleges that it has been prejudiced
by para 67 of the Founding
Affidavit as its contents are irrelevant to the issues before this
court, and that in motion proceedings
the pleadings should deal with
the facts and not the law. It has also been prejudiced by long
extracts of cases which are cited out
of context. With regard to the
relevant paragraphs in the Replying Affidavit, the state contends
that these paragraphs are irrelevant
to the issues before court, and
that they constitute an attack upon the dignity of persons who are
not party to these proceedings.
The latter are consequently unable to
answer to the allegations, which have been made in Reply.
[56]
The application was opposed by Sodi who filed a lengthy Answering
Affidavit denying, in essence, that the impugned
paragraphs in his
Founding and Replying Affidavits fell to be struck out. He avers that
the state has not shown how it was prejudiced
by these paragraphs and
has not alleged that they are vexatious or scandalous. He pointed out
that it is not open to the state to
ask that paragraph 67 of the
Founding Affidavit be struck out when in fact it responded to that
paragraph and relied on paragraph
109 of the judgment cited therein.
In addition, the state did not raise prejudice in its Answering
Affidavit and only does so more
than a month after filing its
Answering Affidavit.
[57]
I mention that the striking out application was not pursued with any
vigour by the state. Mr Cassim omitted to address
the court on the
application during his oral address to court in connection with the
Sodi application. By agreement between the parties,
this was done
after they addressed the court in respect of the Magashule
application. When the matter was eventually addressed, Mr
Cassim did
not grapple with the issues raised in the Answering Affidavit to the
Striking Out application. He indicated that it was
not an improper
application and the only issue seemed to be the attack upon the
officials of the National Prosecuting Authority (NPA).
[58]
In my view, the state has simply made a bald statement that it is
prejudiced by these paragraphs firstly because
they are irrelevant
and also because they attack the officials of the NPA. The state did
indeed respond to paragraph 67 of the Founding
Affidavit and
commented that paragraph 109 of the judgment did in fact support its
case by “putting paid” to the arguments raised
by Sodi and
Blackhead. It is clear that Adv De Nysschen and Adv Somaru would have
been affronted by the comments made by Sodi., and
understandably so.
However, I am not satisfied that the state has established prejudice
due to the inclusion of those paragraphs
in the respective affidavits
or that they fall to be struck out. The issues raised therein can
conveniently and appropriately be
dealt with by the trial court. The
application cannot succeed.
[59]
With regard to the issue of costs in the various applications, Mr
Cassim argued for the respondent that the costs
of three counsel
should be granted. When he was asked by the court to motivate this,
he replied that he was over-ambitious in seeking
costs of three
counsel. Mr Hodes argued that the costs in the striking out
application should be granted on an appropriate scale,
with the costs
of two counsel. In my view the application to strike out was a
simple, uncomplicated matter which did not require
two counsel to be
employed.
[60]
Consequently the following orders are made:
60.1
The application brought by Nthimotse Mokhesi is dismissed with costs,
such costs to include the costs consequent
upon the employment of two
counsel;
60.2
The application brought by Pheane Edwin Sodi and Blackhead Consulting
(Pty) Ltd is dismissed with costs, such
costs to include the costs
consequent upon the employment of two counsel
60.3
The application brought by Thabane Wiseman Zulu is dismissed with
costs, such costs to include the costs consequent
upon the employment
of two counsel;
60.4
The application brought by Elias Sekgobela Magashule is dismissed
with costs, such costs to include the costs
consequent upon the
employment of two counsel
60.5
The application to strike out brought by the respondent (State)
against Pheane Edwin Sodi and Blackhead Consulting
(Pty) Ltd is
dismissed with costs.
S
NAIDOO J
On behalf of
Applicant 1/Accused 1:     Adv C Meiring
Instructed
by
:
Peyper Attorneys
101 Olympus Drive
Helicon Heights
Bloemfontein
(Ref: H Peyper/JN)
On behalf of
Applicants 3 & 4/
Accused 3 &
4:
Adv L Hodes SC, with
Adv (Ms) T Govender
Instructed
by:

BDK Attorneys
c/o Symington De Kok
Attorneys
169B Nelson Mandela
Drive
Westdene
Bloemfontein
(Ref: Mr D Möller)
On
behalf of Applicant 3/ Accused 11:Adv SS Maakane SC, with
Adv
AN Tshabalala
Instructed
by:
Ntobeko Dlamini Attorneys Inc
Durban
c/o
Strauss Daly Attorneys
104 Kellner Street
Westdene
Bloemfontein
On
behalf of Applicant 13/Accused 13: Adv L Hodes SC, with
Adv (Ms) T Govender
Instructed
by:
Victor Nkwashu Attorneys Inc
Bryanston,
Johannesburg
c/o Moroka Attorneys
84 Pres Reitz Ave
Westdene
Bloemfontein
(Ref: AG-TM-GG/si)