Former Free State premier Ace Magashule. (Mlungisi Louw/Volksblad/Gallo Images via Getty Images)
Legal counsel for Edwin Sodi on Monday told the Bloemfontein high court the state was infringing on his fair trial rights by reserving its options as to whether it and to what extent it will rely on testimony before the Zondo commission once the asbestos corruption case goes to trial.
Advocate Lawrence Hodes made the argument in an application for the charges against the ANC benefactor and owner of Blackhead Consulting, which secured the R250-million tender for the Free State asbestos audit, to be dropped.
He said the state’s position, in its answering papers, regarding Sodi’s testimony was nothing short of astounding in that in paragraph 44, whereas it had up till now described it as a nice to have, it submitted that going forward “the position of the state in this regard may well change”.
Hodes said this phrase confirmed that the state was prepared to move the goalposts in the prosecution of his client, and that this flew in the face of fair trial rights, including the accused’s right to know which case he has to meet.
“Herein lies the rub … How can you put somebody on trial and say here is the docket, have a look, prepare your defence but we might change our minds later on?” said Hodes. He also submitted that the proclamation by President Cyril Ramaphosa to amend regulation 8 (2) of the rules of the commission of inquiry into state capture had not been tested in court and may be unconstitutional.
“When the new president took over, he changed the rules of the game, so to speak, my lady, and he said only the evidence that is self-incriminatory will not be utilised. Now that my lady, has not as yet passed constitutional muster and hasn’t yet been considered by the courts,” he told Judge Soma Naidoo.
“It is something that has not as yet, with respect, been decided.”
This line of attack could have far-reaching consequences for future prosecutions flowing from the report of deputy chief justice Raymond Zondo on state capture, but Hodes was forced to concede that he had no precedent to rely on here.
Error of fact
This was so because of an error of fact in the one Constitutional Court judgment that makes reference to the regulation, in a footnote. The court, in the unanimous January 2021 ruling that ordered former president Jacob Zuma to testify before the Zondo commission, declared that in terms of regulation 8(2), no evidence adduced before the commission, may be used in a criminal trial.
“The prohibition extends to derivative evidence that may come to light as a result of the witness’s testimony before the commission. That evidence is inadmissible in criminal proceedings,” the judgment penned by Justice Chris Jafta added.
The flaw is that the court referred to the original version of the regulation, prior to the presidential proclamation in July 2020.
Naidoo interrupted Hodes to ask whether, if the court made a mistake in the regulation it cited: “Are still bound by it?’ Hodes said it was a difficult question, adding: “I am not going to venture an answer.”
But advocate Nazeer Cassim, who appeared for the National Prosecuting Authority (NPA) was unequivocal, saying when a judgment contained a common error of law, the simple and correct answer was to ignore the case as being of no relevance.
Hodes disputed Cassim’s contention that Sodi never incriminated himself before the commission, saying that he was questioned on the witness stand about a schedule of payments that set out a number of transactions that the state claims was corrupt.
He argued that, from the outset, when he was first implicated before the commission, Sodi’s rights were flouted in that he was not served with a section 3.3 notice that he would be implicated by former Free State head of economic development Mxolisi Dukwana before the latter took the stand in April 2019. There was not “any due regard to the rights of Sodi and Blackheath”.
Instead, Sodi was served with such a notice only on 19 August 2019, stating that Dukwana would be returning to the witness stand and would be implicating him. Sodi attended the hearing later that month.
“What then happened is that the commission made a request to interview Sodi,” which happened in October that year, Hodes said. Sodi subsequently received a summons to appear before the Zondo commission in December, which eventually happened only in August the next year because of the Covid pandemic.
Hodes recalled that he represented Sodi at that appearance and said his client was testifying under compulsion and all his rights in relation to a trial were reserved in terms of section 35 of the Constitution.
He said the state was being disingenuous, initially, when it claimed that Sodi should have reiterated this every time he answered a question. Naidoo noted that the state has since amended its stance, and Cassim conceded that this was the case.
“That is a major concession that does not appear on the papers,” Hodes said. “They keep on changing the goalposts and they keep changing the rules. That concession is golden.”
Zondo commission testimony
The court then heard argument from Hodes as well as counsel for Thabani Zulu, the former director general of human settlements, and the former head of the department Nthimotse Mokhesi, that the state’s case against their clients appeared to be premised uniquely on the the testimony before the commission.
Hodes argued that the genesis of the investigation against Sodi made this plain, and noted that he now had the benefit of the investigation diary.
“As soon as Sodi finished testifying before the commission on 29 September 2020, what happens next? He gets arrested, my lady, 30 September 2020. You have to look at the dates, my lady, because they draw a picture and you connect the dots.”
“You ask yourself as an accused person, was I doing the right thing to go and self-incriminate myself against all those assurances when at each juncture they merely changed and does this pass constitutional muster and can I actually be prosecuted?”
Hodes stressed that when the arrest happened, it was on a warrant that was dated 4 September.
“You have to ask yourself if a warrant is something that gets executed with absolute expedition, you don’t hold back on it … but here it is and no possible explanation has ever been tendered for that conduct and I pause at this juncture my lady to ask: How fair is that process?”
Sodi’s Blackhead Consulting had, in a joint venture with the late Igo Mpambani’s Diamond Hill Trading, secured the audit tender that allegedly saw kickbacks flow to their political connections in the Free State province while suspended ANC secretary general Ace Magashule served as premier.
The court will on Tuesday hear Magashule’s argument for having the corruption charges against him dropped.
Part of the argument is that he was not approached for an explanation as to why he failed to report an alleged crime, as required by section 27 of the Prevention and Combating of Corrupt Activities Act, nor was he given proof of an authorisation by the NPA for the institution of a prosecution.
Political context
The state has counted that this was neither necessary, nor prudent, given the highly charged political context in which his indictment in November 2020 occurred.
“Had reasonable notice been given to Magashule of an intended prosecution, based on all the evidence against him, he may have taken steps to evade justice, made multiple approaches to the courts to delay or evade prosecution, or otherwise have interfered with the investigation,” state prosecutor Johan de Nysschen told the court last year when the defence raised this objection.
On Monday, it was similarly raised by counsel for Zulu, who said the state’s conduct rendered the charge in terms of the particular act null and void. His counsel, Solly Maakane, rejected the state’s argument that if Zulu had been duly warned of the charges against him, there was a risk he would have fled the country.
“They are aware of the provisions of the act and they decided not to comply.”
Maakane argued that none of the evidence gleaned from the Zondo commission could be used against Zulu, who denies that he received money as indicated on the spreadsheet relating to the asbestos tender, but conceded before the commission that he used more than half a million rand owed to him by Sodi to pay for a luxury vehicle.
The submission was, in essence, that without the self-incriminating evidence before the state capture commission, the NPA would not have been able to prosecute his client.
After a lengthy day in court, Naidoo agreed to Hodes’s preference that arguments relating to Magashule’s application stand over till Tuesday.
These include that the Prevention and Combating of Corrupt Activities Act does not apply to his client because, as a political office bearer, and not an accounting officer, he fell outside the categories of people listed in the legislation.
Magashule is seeking a declaratory order that he was not “an executive authority”, as defined by the Public Finance Management Act. The state disputes this, saying his argument is trumped by the Constitution, which stipulates that provincial premiers exercise executive authority.
He faces, together with his dozen-plus co-accused, who include former Mangaung mayor Olly Mlamleli and Sodi, face more than 70 charges of corruption, money-laundering and fraud related to a R255-million project to audit and remove asbestos roofing in the Free State.
The court heard on Monday that the extradition proceedings against Magashule’s former personal assistant were ongoing.