Former minister Zizi Kodwa, who was the ANC’s spokesperson at the time of the alleged bribes, appears in court for a bail application. (Delwyn Verasamy/M&G)
Embattled former minister Zizi Kodwa faces 15-year imprisonment should he be convicted on five corruption counts of receiving more than R1.6 million in bribes.
The charges Kodwa faces fall in section 51 of the Criminal Law Amendment Act because they involve more than R500 000.
The National Prosecuting Authority (NPA) charged Kodwa — who resigned as minister of sports, arts and culture this week — alongside former EOH Holdings executive Jehan Mackay. The company provides technology services to businesses and government.
In the charge sheet he filed in the Johannesburg specialised commercial crimes court sitting in Palm Ridge in Katlehong on Wednesday, prosecutor Neville Mogagabe stated that Mackay gave cash and other benefits to Kodwa to allegedly influence lucrative state tenders in favour of Mackay’s former employers.
Both corruption-accused men said they intended to plead not guilty should the matter make it to trial.
According to section 51 of the Act, provision is made “for the imposition of minimum sentences in respect of serious offences”, with a corruption conviction of more than R500 000 in value carrying a mandatory 15-year prison term.
“A high court or regional court is given a discretionary power to impose a lesser sentence if that court is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the prescribed minimum sentence,” the Act states.
On 3 May, the Mail & Guardian reported Kodwa’s expected arrest, quoting several sources close to the investigation who said emails would form part of the NPA’s “strong” case against him.
One of the emails was mentioned in the charge sheet; a July 2015 request from Mackay for Kodwa — who at the time was the ANC’s national spokesperson and a member of its national executive committee — to “look into” a R360 million home affairs department tender that EOH was apparently disqualified from.
“If it is possible, please can you ask the chair [of the bid committee] to look into [the home affairs department tender] — there [sic] games being played,” Mackay wrote to Kodwa.
He added that EOH was “number one” of the nine companies on the list of potential contractors, claiming that the “head of procurement decided to re-evaluate the bids and now it seems we are disqualified”.
“The total value is about R360 million. Also please don’t forget to talk to the regional funding coordinator to understand what their funding requirements are,” he added, and referred to Kodwa as his brother.
But on Wednesday Kodwa’s legal representative, advocate Zola Majavu, said the state would be “hard pressed” to achieve a conviction against his client because he was in a “non-government role” and had “no influence” when the alleged crimes took place.
“It is clear that there is reliance on a common purpose, which I can tell you for free that it was not properly pleaded in the charge sheet. All there is a carbon copy of what was said at the Zondo commission,” Majavu said.
He was alluding to Kodwa’s June 2022 testimony at the state capture commission of inquiry, chaired by Chief Justice Raymond Zondo, in which he said his “friend” Mackay had regularly given him money when he was struggling financially.
Jehan Mackay, a former EOH Holdings executive. (Delwyn Verasamy/M&G)
Another insider close to the investigation told the M&G this week that the NPA would rely on section 25 of the Prevention and Promotion of Corrupt Activities Act, which stated that it “is not a valid defence” for an accused person to say that they “did not have the power, right or opportunity to perform or not to perform the act in relation to which the gratification was given, accepted or offered”.
The Act adds that it is also not a defence for an accused to say that a person “failed to perform or not to perform the act in relation to which the gratification was given, accepted or offered”.
The source said Kodwa’s defence “will not hold up because even if the R360 million tender was not re-advertised, the fact that money changed hands is enough for a criminal conviction”.
The charge sheet showed 11 cash payments totalling more than R1.6 million, from April 2015 to February 2016, in what the state calls “gratification as defined in section 1 of the Prevention and Combating of Corrupt Activities Act … for the intervention of accused two [Kodwa] in government procurement processes to advance the interests of accused one [Mackay]”.
“The state will allege that both accused committed the offences in [the] execution of a common purpose. The state will further allege that the common purpose existed, at the very least, immediately prior to the commission of the offences, and it continued for the duration thereof,” the charge sheet adds.
In his affidavit filed during his bail application on Wednesday, Kodwa said he would not interfere with the state’s investigation and its witnesses.
He added that he would exercise his right to remain silent, and only present his defence when the trial began.
“I intend to plead not guilty and I intend to attend the trial as I have full confidence in the justice system,” Kodwa said in his affidavit, which was read out in court by Majavu.
“I went to the commission with a deep respect for the rule of law. I never located myself as being above the law. That position has not changed [and] I will not evade my trial,” he added.
Mackay also said he was innocent of the charges, adding that he gave Kodwa money “as a friend” and when the former minister was not in government.