The National Prosecuting Authority (NPA) has explained its refusal to fully disclose the docket against three former top Sars officials in the “Project Sunday Evenings” case – denying that it has anything to hide.
Former enforcement executive Johann van Loggerenberg, former deputy commissioner Ivan Pillay and Andries “Skollie” Janse van Rensburg made a brief appearance in the Pretoria Magistrate’s Court on Monday.
The matter was postponed to August 24, when lawyers for the defence are expected to bring an application to compel the NPA to disclose parts B and C of the docket.
The three are facing charges related to the alleged illegal bugging of the NPA head office in Silverton in 2007, allegedly conducted with their knowledge to keep tabs on prosecutors working on the corruption case against former national police commissioner Jackie Selebi.
There is also a corruption charge relating to an amount of R100 000 allegedly given to former SARS investigator, Helgaardt Lombard. It is alleged that SARS paid the funds to Lombard for installing the bugs.
Part A of the docket, which contains the evidence, was disclosed to the accused on May 11, as per an undertaking by prosecutors at the previous appearance in May.
NPA spokesperson Luvuyo Mfaku explained that access to the contents of the police docket was ordinarily granted to an accused person so that they could protect their fair trial rights as envisaged in the Criminal Procedure Act.
“The evidence compiled by the State is ordinarily contained in statements of witnesses, experts or documentary evidence, which are filed in Part A of the docket. Part B mostly contains correspondences with various other departments, banks, internal reports et cetera, which is not evidential material. Part C contains the investigation diary, the notes on progress of the investigation,” Mfaku said.
“The accused are thus entitled to the contents of the docket that is relevant to the exercise or protection of their right to a fair trial. Evidence which is incriminating, exculpatory of that is likely to assist the accused in [the] preparation of their defence, has to be made available,” he added.
Mfaku also cited case law — cases in which it was previously determined that the State need not hand over parts of the docket the three sought.
The case law, in simple terms, states that if an accused (in this case Pillay, Van Loggerenberg and Janse van Rensburg) cannot simply assert a right to these parts of the docket. They must show prima facie facts to the relevance of the content of the parts of the docket under dispute and the relevance to the charges thereof.
“Our view is that courts must decide on a case-by-case basis where there is a difference of views between the prosecution and the defence,” Mfaku said.
“There is nothing to hide. The case revolves around the illegal fitment of listening devices or equipment at the NPA offices around June to November 2007 – as well as the amount of money that was offered to a SARS employee as gratification for having fitted the equipment,” Mfaku told News24.
“We are confident that there are reasonable prospects of a successful prosecution. What has to happen is that, if the accused procured the authorisation to intercept information which is issued by the designated judge in terms of the RICA Act, they must just produce it, and that will make the interception of information lawful,” he said.
Bernard Hotz of Werksmans Attorneys, who is representing the former SARS officials, told News24 on Monday that the NPA had previously undertaken to disclose the entire docket.
“We prefer not to give a textbook response to the NPA – we will be bringing an application to compel them to provide that which they have on numerous occasions undertaken to provide, namely the entire docket,” Hotz said.
“For the NPA to now try and avoid honouring what they undertook to do, is distasteful and is most certainly not respectful of my clients’ fair trial rights,” he said.
“The evidence produced thus far is already supportive of an ill-considered prosecution and, whilst the NPA seek to place their faith on their case, we will in time prove the error in their ways,” said Hotz. — News 24