THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT


Reportable
Case no: 990/2022

In the matter between:

THE DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN CAPE APPELLANT
and
BONGANI BONGO RESPONDENT

Neutral citation: The DPP Western Cape v Bongo (990/2022) [2024] ZASCA 70 (6
May 2024)
Coram: ZONDI, MBATHA and GORVEN JJA, SMITH and KEIGHTLEY AJJA
Heard: 6 March 2024
Delivered: 6 May 2024

Summary: Reservation of questions of law in terms of s 319 of the Criminal
Procedure Act 51 of 1977 – what constitutes a question of law – misdirection by trial
court regarding the elements of the crime and erroneous reliance on a previous
consistent statement constitute questions of law – questions reserved and determined
in favour of the state – matter remitted to the high court for trial de novo.

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___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town (Hlophe JP,
sitting as court of first instance).

1. The state is hereby granted leave to appeal against the refusal by the trial court to
reserve the questions of law for determination by this Court.
2. The questions of law mentioned in the state’s founding affidavit are referred to this
Court for consideration.
3. The third and sixth questions of law are determined in favour of the state.
4. The order of the trial court discharging the respondent in terms of s 174 of the
Criminal Procedure Act 51 of 1977 at the close of the state case, is hereby set aside
and the matter is remitted for trial de novo before a differently constituted court.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Smith AJA (Zondi, Mbatha and Gorven JJA and Keightley AJA):


Introduction
[1] The appellant seeks leave to appeal against the order of the Western Cape
Division of the High Court, Cape Town (the trial court), refusing the state’s application
to reserve questions of law for determination by this Court in terms of s 319 of the
Criminal Procedure Act 51 of 1 977 (the CPA). Those questions all relate to the trial
court’s decision to discharge the respondent at the close of the state’s case in terms
of s 174 of the CPA.

[2] The respondent was arraigned in the trial court on one count and two alternative
counts of corruption. In respect of the main count the state alleged that the respondent
committed the crime of ‘corrupt activities relating to public officers’ in terms of s 4(1)(b)
read with ss 1, 2, 24, 25, 26 (1)( a)(ii) and 26(3) of the Prevention and Combating of
Corrupt Activities Act 12 of 2004 (the PRECCA). And in respect of the two alternative

Corrupt Activities Act 12 of 2004 (the PRECCA). And in respect of the two alternative
counts, the state alleged that, based on the same factual averments, the res pondent

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committed the offences of corruption and ‘receiving or offering of an unauthorised
gratification’ mentioned in ss 3(b) and 10(b), respectively, of the PRECCA.

[3] In terms of s 4(1)(b) any person who, directly or indirectly, gives or agrees or
offers to give any gratification to a public officer , whether for the benefit of that public
officer or for the benefit of another person:
‘in order to act, personally or by influencing another person so to act in a manner–
(i) that amounts to the–
(aa) illegal, dishonest, unauthorised, incomplete, or biased; or
(bb) misuse or selling of information or material acquired in the course of the,
exercise, carrying out o r performance of any powers, duties or functions arising out of a
constitutional, statutory, contractual or any other legal obligation;
(ii) that amounts to–
(aa) the abuse of a position of authority;
(bb) a breach of trust; or
(cc) the violation of a legal duty or a set of rules;
(iii) designed to achieve an unjustified result; or
(iv) that amounts to any other unauthorised or improper inducement to do or not do
anything,
is guilty of the offence of corrupt activities relating to public officers.’

[4] Section 3(b) provides that any person who act s in the aforementioned
proscribed manner is guilty of the offence of corruption, and in terms of s 10(b) a
person who gives or offers an unauthorised gratification to a person who is a party to
an employment relationship, in order to induce him or her to perform any act in relation
to his or her employment relationship, is guilty of the offence of receiving or offering
an unauthorised gratification. The definition of ‘gratification’ in s 1 of the PRECCA
purposely casts the net wide and includes, inter alia , money , whether in cash or
otherwise; donations; loans; the avoidance of a loss or liability ; and any valuable
consideration or benefit of any kind.

[5] The state alleged in essence that on 10 October 2017 in Cape Town, the

[5] The state alleged in essence that on 10 October 2017 in Cape Town, the
respondent wrongfully and intentionally, either directly or indirectly, offered to give
gratification to M r Mtuthuzeli John Vanara (Mr Vanara), the Senior Manager: Legal
and Constitutional Services in the office of the Speaker of Parliament. The respondent

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allegedly intended the gratification to induce Mr Vanara to fake illness, take sick leave,
or otherwise assist the respondent to delay or stop the inquiry conducted by the
Parliamentary Portfolio Committee into the affairs of Eskom (the Inquiry).

[6] The respondent pleaded not guilty to all charges and submitted a written plea
explanation denying all the allegations against him. He also made various formal
admissions in terms s 220 of the CPA. These admissions related, inter alia , to
Mr Vanara’s official designation, his role in the Inquiry, that various telephone
conversations between him and Mr Vanara regarding proposed meetings took place,
and that he had met with Mr Vanara at the latter’s office in the parliamentary buildings
on 10 October 2017.

[7] The state called several witnesses and after it had closed its case, the
respondent applied for discharge in terms of s 174 of the CPA. The trial court , per
Hlophe JP, delivered its judgment on 26 February 2021, granting the respondent’s
discharge.

[8] On 16 March 2022, the state filed an application to reserve six questions of law
in terms of s 319 of the CPA. The respondent opposed the application. The trial court
heard the application on 5 September 2022 and dismissed it without giving any
reasons. Reasons were only provided at the state’s re quest the following day . On
5 October 2022, the state petitioned the President of this court for leave to appeal in
terms of s 317(5), read with s s 316(11), 316(12) and 316(13) of the CPA. The
respondent opposed the petition.

[9] On 16 February 2023, this Court granted an order referring the application for
leave to appeal for oral argument in terms of s 17(2)(d) of the Superior Courts Act 10
of 2013. The parties were also given notice that they should be prepared to address
the Court on the merits, if called upon to do so. Counsel have therefore presented
legal argument in respect of both the application for leave to appeal against the refusal

legal argument in respect of both the application for leave to appeal against the refusal
to reserve the questions of law and, if granted, the merits of the appeal itself.

[10] The state now seeks an order in the following terms:

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(a) Granting it leave to appeal against the refusal of the trial court to reserve the
questions of law;
(b) That the questions of law mentioned in the founding affidavit be reserved and
referred to this Court for consideration; and
(c) In the event of the reserved questions of law being resolved in favour of the
state, that this Court orders that the appeal succeeds, the respondent’s discharge is
set aside, and the matter is remitted for trial de novo before a differently constituted
court.

The proceedings before the trial court
[11] The state called six witnesses, namely Mr Vanara; Mr Disang Mocumi, the
secretary for the Portfolio Committee on Public Enterprises; Mr Masibulele Xaso, the
Secretary to the National Assembly; Mr Modibedi Phindela, the Secretary to the
National Council of Provinces ; Ms Penelope Tyawa, the Acting Secretary to
Parliament; and the investigating officer, Lieutenant Colonel Mokhoema.

[12] Mr Vanara was appointed as evidence leader of the Inquiry on 1 January 2017.
He testified that the respondent called him on several occasions on 4 October 2017
while he was on his way to meet with the then Acting Chairperson of Eskom,
Mr Zethembe Khoza (Mr Khoza). That meeting had been scheduled for the following
day in Johannesburg. On the first occasion, the respondent asked him whether he was
at his office. Mr Vanara replied that he was on his way to Durban. He explained that
for security reasons he did not provide information regarding his travel arrangements
to third parties. The respondent then asked him if he had arranged to meet with
Mr Khoza. He replied that he was still waiting for the meeting to be confirmed.

[13] On the second occasion the respondent asked Mr Vanara for his flight details
and suggested that they should meet at the Cape Town airport. Mr Vanara instead
agreed to meet him the following Monday. The respondent called him again, to enquire
whether Mr Vanara would be meeting Mr Khoza in Cape Town. Mr Vanara told him

whether Mr Vanara would be meeting Mr Khoza in Cape Town. Mr Vanara told him
that the meeting would take place in Johannesburg.

[14] While travelling with Mr Mocumi from the airport to his hotel, Mr Vanara asked
the former whether he knew the respondent. Mr Mocumi said that he knew him as a

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member of parliament. Mr Vanara then told Mr Mocumi that the respondent seemed
unusually interested in the proceedings of the Inquiry.

[15] Mr Vanara said that the meeting scheduled for the following Monday did not
materialise and he eventually only met the respondent at his office in the parliamentary
buildings on 10 October 2017. It was at that meeting where, according to Mr Vanara,
the events unfolded that resulted in the criminal charges against the respondent. He
said that the respondent told him that he had been requested by Mr Khoza to ask
Mr Vanara for assistance. Mr Vanara asked him what the nature of the assistance
would b e. The respondent replied that ‘Eskom’s people were worried about
incriminating evidence against them and there would be police officials waiting to
arrest them.’ The respondent also told him that the Inquiry was Mr Pravin Gordhan’s
‘brainchild and that he was conflicted.’ The respondent said furthermore that the
Inquiry was also impacting on a number of other ‘parallel’ inquiries.

[16] Mr Vanara testified that he was ‘confused’ as to what exactly was r equired of
him and again asked the respondent how he could be of assistance. The respondent
said that the Inquiry could not proceed in his [Mr Vanara’s] absence and that he should
therefore fake illness and take sick leave. Mr Vanara protested and told the respondent
that the Inquiry was initiated by the politicians and that only they had the power to stop
it.

[17] The respondent then 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
protested that his conscience would not allow him to acquiesce in such a scheme. He
therefore told the respondent that the meeting was over, opened the door for him to

therefore told the respondent that the meeting was over, opened the door for him to
leave and told him that there was nothing to consider.

[18] Immediately after th e meeting, Mr Vanara arranged to meet with M essrs
Phindela and Xaso in Stellenbosch where they were attending a workshop. At that
meeting he reported that the respondent had offered him a bribe to either delay or

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collapse the Inquiry. He subsequently also reported the incident to M s Tyawa and
submitted an affidavit setting out the details of his encounter with the respondent.

[19] During cross-examination counsel for the respondent took Mr Vanara to task
for his failure to report the incident to the police. He put to Mr Vanara that h e was
required to do so in terms of s 34(2) of the PRECCA and that his failure to comply with
that provision constituted an offence.

[20] Counsel for the respondent also criticised Mr Vanara for delaying the filing of
his affidavit and for denying that he had known before October 2017 that the
respondent was an advocate. According to instructions given to his counsel by the
respondent, he and Mr Vanara had discussed a domestic dispute between the latter
and his wife, which had resulted in criminal charges (which were later withdrawn) being
preferred against Mr Vanara. Counsel also put to Mr Vanara that it was improbable
that the respondent would have known about that incident if he had not been told by
Mr Vanara. Mr Vanara, however, denied ever having discu ssed his domestic affairs
with the respondent and was adamant that he did not kno w the respondent before
4 October 2017.

[21] Counsel for the respondent further put to Mr Vanara that on 5 September 2018,
and in an adjacent office occupied by one Ms Shihaam Lagkar, Mr Mocumi had
allegedly said to Mr Vanara: ‘Who does this Bongo think he is? He is a small boy and
we will deal with that small boy’. That incident allegedly happened in the presence of
Mr Vanara, one Ms Miller (Ms Lagkar’s sister), and one Mr Desai. This assertion was
presumably proffered to show that there had been a conspiracy to falsely implicate the
respondent. Mr Vanara also denied this allegation.

[22] Messrs Xaso and Phindela corroborated Mr Vanara’s version regarding the
report he made at the meeting of 10 October 2017. They confirmed that Mr Vanara

report he made at the meeting of 10 October 2017. They confirmed that Mr Vanara
had told them that he had been approached by the respondent with a request that he
should feign illness to delay the inquiry in return for which he could name his price.

[23] Ms Ty awa also confirmed that Mr Vanara had told her that he had been
requested by the respondent to feign illness in order to delay or collapse the Inquiry.

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Although she did not initially mention during her evidence -in-chief or under cross -
examination that Mr Vanara also said that the respondent had offered him a bribe to
do so, during questioning by the trial court she confirmed that Mr Vanara had made
such a report. When she was asked by the presiding judge to explain her failure to
mention the bribe earlier, she said that it had slipped her mind because of the passage
of time but that she did mention it in her statement to the police.

[24] Although Mr Mocumi corroborated Mr Vanara’s testimony regarding their
discussion on their way from the airport, his evidence did not really take the matter
any further . He testified mainly regarding the inquiry conducted by the Ethics
Committee into allegations of impropriety against the respondent.

[25] Lt. Col. Mokhoema testified that a criminal docket was registered on
22 November 2017 after the leader of the Democratic Party, Mr Steenhuisen , had
raised the matter in parliament. He thereafter interviewed Mr Vanara who told him that
the respondent had asked him to feign illness in order to collapse the Inquiry and that
he could name his price. During the course of his testimony, a statement made by the
respondent on 14 March 2018 (Exhibit F) for the purposes of the proceedings before
the Parliamentary Ethics Committee, was handed in and referred to by counsel for the
respondent.

Findings by the trial court
[26] In considering the application for the respondent’s discharge at the close of the
state’s case in terms of s 174 of the CPA, the trial court subjected Mr Vanara’s
testimony to the cautionary scrutiny applicable to single witnesses . It found that his
testimony was not credible in material respects, and being a single witness, the court
was of the view that ‘his evidence must be clear and satisfactory in all material
respects.’

[27] The following findings appear to have been critical to the trial court’s re jection

[27] The following findings appear to have been critical to the trial court’s re jection
of Mr Vanara’s evidence: (a) Mr Vanara had failed to report the incident to the police
despite the statutory injunction for him to do so. The trial court reasoned that if he had
believed that the respondent had committed the offence of corruption, he would have
reported the incident to the police; (b) the respondent did not offer Mr Vanara a ‘blank

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cheque’ or a fixed amount and no arrangements were made for payment or to obtain
Mr Vanara’s banking details; (c) Mr Vanara admitted that he did not have the power to
stop the Inquiry, and ‘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 ’; (d) an affidavit
made by the respondent in respect of the proceedings before the Parliamentary Ethics
Committee (in respect of which he was found not guilty) constituted a previous
consistent statement which was consistent with the respondent’s version regarding
the nature of the discussions between him and Vanara ; and (e) there were material
contradictions between Mr Xaso’s, Mr Phindela’s and Ms Tyawa’s testimonies
regarding what Mr Vanara had reported to them . His testimony was therefore not
corroborated by the other state witnesses.

[28] The trial court consequently found that there was insufficient evidence on which
a reasonable court, acting carefully, may convict, and that it would be wrong to refuse
the s 174 application in the hope that the respondent would incriminate himself. It
accordingly ordered the respondent’s discharge.

Application for leave to appeal
[29] In an application before the trial court for the reser vation of issues in terms of
s 319 of the CPA, that court is only required to decide whether the issues sought to be
reserved are questions of law. When, however, an application for leave to appeal
against a decision of the trial court refusing to reserve a question of law comes before
this Court, it will only exercise its discretion in favour of the state if there is a reasonable
prospect that a mistake of law was made. In addition, there must at least be a
reasonable prospect that, if the mistake of law had not been made, the accused would
have been convicted.’1

[30] The trial court, in refusing leave to appeal, was of the view that if its decision

[30] The trial court, in refusing leave to appeal, was of the view that if its decision
were to be set aside on appeal and remitted for trial de novo, the respondent would
be entitled to raise a plea of autrefois acquit.2 That finding is with respect patently
wrong and ignores the explicit provisions of ss 322(4) and 324 of the CPA. S ection

1 S v Basson 2003 (2) SACR 373 (SCA) paras 10-11.
2 The plea by an accused that he or she had previously been acquitted for the same offence and should
therefore not be tried again.

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322(4) provides that where a question of law has been reserved for consideration by
an appeal court in the case of an acquittal and is decided in favour of the state, ‘the
court of appeal may order that such of the steps referred to in s 324 be taken as the
court may direct.’

[31] Section 324 of the CPA in turn provides that a court of appeal may order that
‘proceedings in respect of the same offence to which the conviction and sentence
referred may again be instituted either on the original charge, suitably amended where
necessary, or upon any other charge as if the accused had not previously been
arraigned, tried and convicted: Provided that no judge or assessor before whom the
original trial took place shall take part in such proceedings.’

[32] In terms of s 322(1)(a) of the CPA, the court of appeal may, in the case of any
reserved question of law, allow an appeal if it is of the view that the judgment of the
trial court should be set aside on the ground of any wrong decision regarding the
question of law. The court of appeal may in those circumstances remit the matter for
trial de novo before another presiding officer without the issue of double jeopardy
arising.3

[33] For the reasons discussed below, I am of the view that the trial court made
several mistakes of law. I am also satisfied that there are reasonable prospects that
the respondent would have been convicted of either the main or alternative charges
mentioned in the indictment if the mistakes of law had not been made. As I explain
below, the evidence led by the state, at the very least, constituted prima facie evidence
that the respondent had committed the crime of corruption. Mr Vanara ’s testimony
established that the respondent had offered him gratification to induce him to commit
a proscribed act, namely, to feign illness in order to delay or collapse a parliamentary
committee inquiry. In my view, there are reasonable prospects that the evidence led

committee inquiry. In my view, there are reasonable prospects that the evidence led
by the state was evidence on which a reasonable court could convict the respondent.


3 Director of Public Prosecutions, Transvaal v Mtshweni 2007 (2) SACR 217 (SCA), para 29.

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[34] I am accordingly of the view that the state should be granted leave to appeal
the trial court’s refusal to reserve the questions of law mentioned in the state’s founding
affidavit. Those questions should therefore be reserved for consideration by this Court.

The legal principles
[35] The application for the reservation of the questions of law must be considered
in the light of the following legal principles. Section 319 of the CPA provides that a
High Court may, either of its own accord or on the application of the prosecution or the
accused, reserve a question of law for consideration by the Supreme Court of Appeal.
It is trite that the section does not allow the reservation of an issue which is a question
of fact. The question as to ‘whether the proven facts in a particular case constitute the
commission of a crime’ is a question of law. But ‘a question of law is not raised by
asking whether the evidence establishes one or more of the factual ingredients of a
particular crime, where there is no doubt or dispute as to what those ingredients are.’4

[36] The following requirements must be met before a question of law may be
reserved: (a) the question must be framed accurately so that there is no doubt as to
what the legal point is; (b) the facts upon which the point is based must be clearly set
out; and (c) all of this must be clearly set out in the record. 5 In addition, questions of
law should not be reserved where they will have no practical effect on the acquittal of
the accused.6

[37] The legal principles which underpin the consideration of an application for
discharge in terms of s 174 of the CPA are as follows. The starting point is the section
itself, which reads as follows:
‘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 other
offence of which he may be convicted on the charge, it may return a verdict of not guilty.’

offence of which he may be convicted on the charge, it may return a verdict of not guilty.’


4 Magmoed v Janse Van Rensburg and Others 1993 (1) SACR 67 (A) at 94 a-c.
5 Director of Public Prosecutions, Western Cape v Schoeman and Another 2020 (1) SACR 449 (SCA)
para [39].
6 Attorney General, Transvaal v Flats Milling Company (Pty) Limited and Others 1958 (3) SA 360 (A)
373 to 374.

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[38] The phrase ‘no evidence’ has been interpreted by our courts in a long line of
cases as involving the test whether there is evidence upon which a reasonable court,
acting carefully, may convict.7 Although credibility of witnesses may be considered, it
plays a very limited role at this stage of the proceedings. It is only in exceptional cases
where the credibility of a witness has been so ‘utterly destroyed’ that no part of his or
her material evidence can possibly be believed. Before credibility can play a role at all
a very high degree of untrustworthiness must therefore be shown.8

The questions of law sought to be reserved
[39] The state applies for the following questions of law to be reserved for
consideration by this Court in terms of s 319 of the CPA:
(a) Question 1: Whether the trial court applied the correct test and legal principles
when assessing the credibility of witnesses in an application in terms of s 174 of the
CPA.
(b) Question 2: Whether the trial court correctly applied the elements of the offence
of corruption when the court indicated that it had difficulty in accepting Vanara’s
evidence as he lacked the power to stop the enquiry.
(c) Question 3: Whether the trial court correctly applied the elements of the offence
of corruption when it found that the state had not proved the offence of corruption as
a result of no arrangements having been made with Vanara for payment.
(d) Question 4: Whether the tria l court applied the legal principles relating to the
evaluation of evidence correctly when drawing an adverse inference against the state
for electing not to call a witness where the evidence relevant to the state’s case was
common cause and the witness was made available to the defence.
(e) Question 5: Whether the trial court correctly applied the provisions of s 34 of
the PRECCA, when it found that there had been a duty on Vanara to report the incident
to the South African Police Service and/or the HAWKS in t erms of s 34(1) of the
PRECCA.

to the South African Police Service and/or the HAWKS in t erms of s 34(1) of the
PRECCA.
(f) Question 6: Whether the trial court properly used what it found to be the
respondent’s previous consistent statement to accept that the uncontested version of

7 S v Khanyapa 1978 (1) SA 824 (A) at 838F; S v Mpetha 1983 (4) SA 262 (C) at 263H; S v Agiotti 2011
(2) SACR 437 (GSJ).
8 S v Mpetha and Others 1983 (4) 262 (C) at 263H.

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respondent was credible and the state’s version lacked credibility, for the purposes of
the s 174 application.

[40] For reasons which will be clarified below, I choose not to deal with all of the
questions posed by the state. Question 3 relates to the issue whether the trial court
correctly applied the elements of the crime of corruption in evaluating whether Mr
Vanara’s evidence passed muster for the purposes of the s 174 enquiry. Question 6
raises the issue as to whether the trial court proper ly relied on the respondent’s
previous consistent statement as corroboration for the version put to the state
witnesses during cross-examination. These questions manifestly raise issues of law ,
and if resolved in favour of the state, they may well be dispositive of the matter. They
consequently warrant thorough consideration. I now turn to consider those questions,
bearing in mind the aforementioned legal principles.

Question 3: Whether the trial court correctly applied the elements of the offence
of corruption when it found that the state did not prove the offence of corruption
as a result of no arrangements having been made with Vanara for payment.
[41] The trial court found that Mr Vanara had confirmed that neither the respondent,
nor anybody else acting on his behalf, had asked him for his bank details, that there
had been no offer of a specified amount or any arrangements to get the money to him,
and there had not been any ‘follow-up meetings’ between them. Those findings must
be understood in the context of the preceding paragraph of the judgment [para 23]
where the trial court commented that ‘[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 prescribed act, i.e. the delay or collapse of the Inquiry

is made in exchange for a prescribed 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.’

[42] The state contends that the trial court has in effect found that since there h ad
been no arrangements for the payment of a bribe, no offer was made to Mr Vanara to
commit a proscribed act, and the crime of corruption had therefore not been
committed. Counsel for the state argued that the trial court fundamentally
misunderstood the applicable legal principles. He submitted that t he crime of
corruption is complete once an offer is made to an official to perform a proscribed act

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for gratification even though there was no agreement to perform and no quid pro quo
had been paid or agreed upon. He relied in this regard on the finding by this Court in
S v Selebi where the Court said that:
‘Section 4, in my view, does not require an agreement between the corruptor and the
corruptee, nor does it require a quid pro quo from the corruptee. It must be plainly understood
that the conviction in this case on the evidence that established an agreement and the giving
of a quid pro quo, is not the low water mark of the section.’9
This finding is another material misdirection committed by the trial court, or so counsel
for the state argued.

[43] Counsel for the respondent submitted that the trial court’s comments should be
understood in the context of its assessment of the probabilities that a bribe was offered
in the absence of an agreed amount, no bank details having been provided, and there
having been no follow-up meetings to discuss the offer. In the circumstances the trial
court concluded that it was improbable that a bribe had been offered in the absence
of those arrangements. The trial court was therefore merely making credibility findings
and did not purport to make any findings regarding the elements of the offence or
whether they had been proved by the state. He argued that no matter how flawed the
trial court’s reasoning might have been, it remains a factual enquiry and can hence not
be regarded as a question of law that should be reserved for determination by this
Court.

[44] In my view, those factual findings arose from a misconstruction of the elements
of the offence . It will frame the enquiry if the following excerpts from Mr Vanara’s
transcribed testimony are set out followed by the way in which the court a quo dealt
with it and other state evidence:
‘EXAMINATION BY MS DU TOIT -SMIT [continued]: Thank you, M’Lord. Advocate Vanara,
before the adjournment we just started on your conversation that you had in your office with

before the adjournment we just started on your conversation that you had in your office with
the accused. You may continue.
MR VANARA: ‘So when the accused made reference to assistance that the acting chairperson
of the Eskom Board wanted from myself regarding the Public Enterprises oversight enquiry, I
then asked the accused what … the nature of the assistance that was required from mys elf.

9 S v Selebi 2012 (1) SA 487 (SCA), para 97; See also: South African Criminal Law and Procedure Vol
3 (Statutory Offences) (2nd Edition); Milton and Cowling, at D3-D13.

15

Then the accused responded that the people of Eskom were worried. They were worried about
them being called or invited into the committee proceedings; enough incriminating evidence
would be led against them; there would be police officials waiting to arrest them as they walked
out of the committee proceedings. That is why they needed my assistance. I couldn’t figure it
out again what … this kind of assistance that was required of me.
I then again asked the accused what he meant by “assistance”. What is exactly that was
required of me? And the accused then again responded to the same question, but differently
this time. The accused then says the inquiry is Pravin Gordhan’s brainchild, and that he, Pravin
Gordhan was conflicted. He further alluded to the – he said the inquiry was affecting a number
of campaigns. I had been left confused, because I didn’t understand what then the relevance
of the brainchild of the inquiry … I was not understanding how the conflict of one of the
members had anything to do with the Eskom people.
Then I asked the accused again what he meant by “assistance”, what is it that is required of
me? I even offered a proposal in respect of the board members. I said, if in the board members’
view there was enough evidence incriminating them then the board must resign. Then I said I
don’t know, I’m sorry, I can’t be of assistance. And the accused then said to me but the inquiry
cannot proceed next week Tuesday and that I should help them – by “them”, I took it was
reference to the Eskom p eople, people from Eskom – to stop the inquiry from proceeding. I
then asked the accused why should I assist stopping the inquiry? Further, how does he
propose that I stop the inquiry? He then did not answer the question of why. I guess it was for
the reasons that we had already discussed. He did respond to the “how” part. He then said I
could fake illness and take sick leave the following week, which was when the inquiry would

could fake illness and take sick leave the following week, which was when the inquiry would
have started, because he said in my absence the committee will not proceed. I then said I am
not going to assist with that plan.’

[45] There the n ensued a discussion between Mr Vanara and the respondent
regarding the political nature of the Inquiry. Mr Vanara said that the respondent had
told him about his alternative plan, which was to petition the caucus of the ruling party
to stop the Inquiry but that he [Mr Vanara] could still assist ‘to stop or at least delay
the inquiry.’

[46] Mr Vanara’s testimony then continued as follows:
‘MR VANARA: I then said I am not going to b e part of interfering in a political process. Mine
was an insignificant role in this inquiry. And he differed. I remember him saying: Without … or
in your absence, the committee is dysfunctional.
COURT: Without the Evidence Leader.

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MR VANARA: Yes. And I then said sorry, there is just no way that I could assist with what you
are asking me to do. If, as politicians, you want to stop the inquiry, do it yourself. Then Mr
Bongo says: Just name the price.
COURT: Just name the price. Yes?
MR VANARA: And tell me how you’re going to assist them – which I took to be the people of
Eskom – to stop the inquiry. I – meaning Bongo – would go to the Eskom people and tell them
your plan of stopping the inquiry.
COURT: The plan?
MR VANARA: Yes, my plan, presumably if I accede to the proposal. He would then take the
plan to the people of Eskom, and he would then tell them how much, or the price that I want
to be paid for the assistance. He would then receive the money, and would then hand over
the money to me.’

[47] It is manifest from the quoted excerpts that the element of gratification had been
established, at least on Mr Vanara’s version. The respondent had allegedly offered
money to Mr Vanara, albeit in the form of ‘a blank cheque’, namely that he was asked
to name his price. Mr Vanara had refused the offer of gratification and there were
accordingly no arrangements for follow-up meetings.

[48] There can, in my view, hardly be a more straightforward and unambiguous
account of the unlawful offering of gratification to a public officer in order to induce him
to perform a proscribed act. That the trial court was oblivious to this unequivocal and
overt evidence of the commission of the crime of corruption can only be ascribed to its
fundamentally erroneous understanding of the elements of that crime. This emerges
from paras 22 and 23 of the judgment. At para 22 of the judgment, the trial court said
that Mr Vanara confirmed that when 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 payment or obtaining Mr Vanara’s

on his behalf never tried to make any arrangements for payment 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’.

[49] Those observations then led to the crucial finding at para 23 of the judgment,
namely that:
‘[T]he 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

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that only when an offer of gratification is made in exchange for a pr[o]scribed act i.e. the delay
or collapse of the Inquiry Committee in favour of Mr Vanara or any other person, only then
does it become a crime.’

[50] The trial court’s reasoning in paras 22 and 23 of the judgment were thus clearly
intended to underpin its finding that ‘having a discussion about delaying or collapsing
a parliamentary process is not unlawful.’ This is what the trial court found to be ‘the
difficulty with Mr Vanara’s evidence.’ The findings regarding the absence of a ‘blank
cheque’ or a fixed amount offered to Vanara and the absence of evidence that the
respondent attempted to obtain Mr Vanara’s bank details, were clearly intended to
support the conclusion that, as a matter of law, no offer of gratification had been made
to Mr Vanara.

[51] This much is also evident from the trial court ’s comments when challenging
Ms Tyawa regarding her failure to mention the bribe, as is demonstrated by the
following excerpt from the record:
‘COURT: I will tell you why this is important, ma’am. My understanding of the law is this. If
Advocate Bongo or anyone else had approached the evidence leader to collapse the inquiry
or to express his views that I don’t like this inquiry, I wish it could go away, that’s not a crime.
That’s not crime. He is merely expressing his views or his wish. It becomes a crime, however,
when Advocate Bongo or anybody else offers a bribe. There’s a huge difference between
wishing the inquiry to go away for whatever reasons, right, which is not a crime and will never
be a crime.
And going further than that and making a definite offer and say I want to pay you so much in
order for you to end this inquiry.’

[52] It is thus clear that t he trial court was of the erroneous view that the
respondent’s request for Mr Vanara to collapse the inquiry could only constitute the
crime of corruption if the latter had been offered a specific sum of money as

crime of corruption if the latter had been offered a specific sum of money as
gratification. Apart from it conflicting with established legal principles, that
understanding was oblivious of the purposely wide definition accorded to ‘gratification’
in terms of s 1 of the PRECCA. In my view the finding is manifestly wrong.

[53] Moreover, the trial court’s error was not confined to an analysis of the evidence
to determine whether the elements of the crime of corruption had been established –

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in which event it would have been an error of fact – but extended to an assessment of
the evidence based on an erroneous understanding of the legal elements of the crimes
with which the respondent had been charged. That finding was therefore a material
misdirection by the trial court on a question of law and the question must consequently
be decided in favour of the state.

Question 6: Whether the trial court properly used , what it found to be the
respondent’s previous consistent statement , to accept that the uncontested
version of respondent was credible and the state’s version lacked credibility, for
the purposes of the s 174 application.
[54] The trial court found that an affidavit made by the respondent in respect of the
proceedings before the Parliamentary Ethics Committee was a previous consistent
statement which establishes that: (a) the respondent and Mr Vanara had begun
interacting on a collegial basis during February 2017; (b) as advocates they interacted
on issues of mutual interests, particularly issues that may ‘have a bearing on the
execution of our duties in Parliament’; and (c) their meeting revolved around the issue
of ‘possible legal dead-lock on the parallel establishment of the State Capture Inquiry
by both parliament and the Executive Head.’ Th e trial court found that the statement
is consistent with the responde nt’s version regarding the nature of the discussions
between him and Mr Vanara which had been put to the State witnesses.

[55] Counsel for the state argued that the finding by the trial court that the statement
was a previous consistent statement which corroborates the respondent’s version and
had probative value , was a material misdirection of law. He submitted that f irst, the
statement was inconsistent , in material respects , with what had been put to State
witnesses during cross-examination and could therefore not be regarded as a previous
consistent statement. And s econd, even if it could be regarded as a previous

consistent statement. And s econd, even if it could be regarded as a previous
consistent statement, the trial court committed a serious misdirection in attaching
probative value to the statement since the respondent d id not adduce any evidence
under oath. Counsel for the respondent submitted that the trial court, although finding
that the statement was a previous consistent statement, did not refer to it in order to
admit it as a previous consistent statement but merel y to demonstrate that it was not
a previous inconsistent statement as contended for by the state.

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[56] To my mind, the latter submission is at odds with the trial court’s unambiguous
statements. At para 44 of the judgment, it made the following finding:
‘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.’

[57] There can therefore be little doubt that the trial court had found corroboration in
the statement for the version put to the state witnesses on the respondent’s behalf.
The respondent did not adduce any evidence under oath and the trial court therefore
committed a material misdirection by holding that the statement had probative value.

[58] This Court, in S v Mkohle10, held that a witness’s previous consistent statement
has no probative value except where it is alleged that his or her version is a recent
fabrication. There has not been any suggestion of recent fabrication in this matter and
the statement accordingly has no probative value. Even more importantly, it was not
consistent with any other statement since the respondent did not adduce any evidence
at the trial. It was simply a version put to the state witnesses . Even a previous
consistent statement can only be consistent with actual evidence. After all, one would
expect that what is put to opposing witnesses is consistent with other aspects which
have been put. That has no bearing on the acceptability or otherwise of the ‘previous’
statement.

[59] Counsel for the state thus correctly submitted that the trial court committed a
material misdirection by character ising the statement as a previous consistent
statement and according it probative value. This question of law must therefore also
be resolved in favour of the State.

Order
[60] In the light of my findings in respect of the abovementioned questions i t is
unnecessary to determine the remainder of the questions sought to be reserved. The

unnecessary to determine the remainder of the questions sought to be reserved. The
other questions, particularly those that relate to whether the trial court correctly applied
the cautionary rule applicable to the testimony of a single witness at the stage of the

10 S v Mkohle 1990 (1) SACR 95 (A) at 99d: See also : S v Scott-Crossley 2008 (1) SACR 223 (SCA)
para [17].

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s 174 application and whether it had properly drawn an adverse inferen ce from the
fact that a state witness was not called, raise interesting legal questions that are best
left for decision on another occasion.

[61] As I said earlier, if the mistakes of law had not been made, the trial court would
have found that there was sufficient evidence upon which a court, acting reasonably,
may have convicted the respondent of the main or alternative counts . I am therefore
of the view that: (a) the third and sixth questions of law must be determined in favour
of the state; (b) the respondent’s discharge in terms of s 174 of the CPA must be set
aside; and (c) the matter must be remitted for trial de novo before a differently
constituted court.

[62] In the result the following order issues:
1. The state is hereby granted leave to appeal against the refusal by the trial court to
reserve the questions of law for determination by this Court.
2. The questions of law mentioned in the state’s founding affidavit are referred to this
Court for consideration.
3. The third and sixth questions of law are determined in favour of the state.
4. The order of the trial court discharging the respondent in terms of s 174 of the
Criminal Procedure Act 51 of 1977, at the close of the state’s case, is hereby set aside
and the matter is remitted for trial de novo before a differently constituted court.





________________________
J E SMITH
ACTING JUDGE OF APPEAL

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Appearances

For the appellant: C Webster SC with C Tsegarie and D Combrink
Instructed by: State Attorney, Cape Town
State Attorney, Bloemfontein.

For the respondent: MR Hellens SC
Instructed by: De Jager De Klerk Attorneys Inc, Cape Town
Honey Attorneys, Bloemfontein.