The credibility of Tony Yengeni’s claim that former prosecutions head Bulelani Ngcuka promised him a R5 000 fine in exchange for pleading guilty to fraud was questioned in the Pretoria High Court on Monday.
Had such an agreement existed, one would have expected Yengeni to protest immediately at having being given a four-year prison sentence, one of the judges presiding over Yengeni’s review and appeal bid, Eberhard Bertelsmann, stated.
”Could it not be expected that he would have jumped to his feet and said, ‘This is not what was agreed upon’?” the judge asked of Yengeni’s counsel, Koos van Vuuren.
Van Vuuren said his client, a former chief whip of the African National Congress, had indeed been shocked by the penalty.
”And yet he supinely does nothing for a number of months?” Bertelsmann asked. ”How likely is that? How probable is that?”
It was also hard to understand why the supposed agreement was not initially reflected in Yengeni’s notice of appeal.
”I agree, it is not a happy state of affairs,” Van Vuuren conceded.
Bertelsmann and his colleague, Judge Ferdi Preller, also questioned the validity of the agreement, had one existed.
They asked Van Vuuren whether such a deal would have been enforceable considering that it would have been unlawful and unconstitutional. In any event, no presiding officer could ever be held to a sentencing agreement struck between the prosecution and defence.
Yengeni claimed that Ngcuka promised him a fine not exceeding R5 000 if he pleaded guilty to a lesser charge of fraud. He was initially charged with corruption and fraud, and pleaded guilty to the alternative to the corruption charge.
He was convicted of defrauding Parliament by failing to disclose a near-50% discount he received on a 4X4 Mercedes Benz.
The car deal was arranged by a representative of a bidder in the government’s arms-acquisition process. Yengeni was then chairperson of Parliament’s joint standing committee on defence, which oversaw the arms deal.
The meeting where the deal was struck, he claimed, was attended by former justice minister Penuell Maduna.
Van Vuuren conceded such an agreement could never be enforceable as one could not enter into a binding contract to do something that was impossible.
But he maintained his client was misled.
Matthew Chaskalson, for the National Director of Public Prosecutions, described Yengeni’s version as fanciful and questioned why it only came to the fore two years after the fact.
Even if an agreement existed, it would have been inconsistent with the law and with the Constitution. The breach of such an agreement could never be considered an irregularity.
Had Yengeni been deliberately tricked, that would have impacted on the fairness of his trial, Chaskalson said. But that is not what happened.
Yengeni relied on the alleged agreement in asking the high court to review the criminal proceedings by which he was convicted and sentenced to four years in jail — at least eight months of which would have to be served.
The judges reserved judgement on the review application, before proceeding to hear a separate appeal bid against Yengeni’s conviction and sentence.
In it, the politician claimed Parliament could not be defrauded as it was not a legal entity capable of suing or being sued.
But Van Vuuren appeared to have trouble answering the judges’ questions on the veracity of such a contention.
”I could find no authority supporting either the state’s version or ours,” he said.
”Perhaps that is because the matter is too obvious,” Bertelsmann retorted.
He repeatedly asked Van Vuuren to explain his point.
The hearing continues. — Sapa