/ 17 March 2021

Hlophe did not apply corruption law properly in Bongo case, NPA argues

Nkabinde And Jafta Object To Conduct Committee Investigating Hlope
Western Cape Judge President John Hlophe views the finding by the Judicial Conduct Tribunal that he committed gross misconduct as wrong in fact and in law and plans to contest it, according to a letter from his lawyer.

The National Prosecuting Authority has raised errors on nine points of law in its grounds for seeking leave to appeal Western Cape Judge President John Hlophe’s dismissal of corruption charges against ANC MP Bongani Bongo.

The state avers that Hlophe misdirected himself on the Prevention and Combating of Corrupt Activities Act and the tests to be applied when weighing the testimony of witnesses, as well as accepting the untested version of an accused.

Hlophe dismissed the corruption case against Bongo in late February, four days after his lawyers filed a section 174 application, on the basis that there was no evidence on which a court would reasonably return a finding of guilt.

He found that the credibility of parliamentary law adviser Ntuthuzelo Vanara, who accused Bongo of trying to bribe him, had come under doubt because of contradictions in the testimony from colleagues in the legislature. 

Both the ruling and Hlophe’s decision to allocate the highly political case to himself caused unhappiness in legal circles. 

It meant that Bongo never had to defend himself against the charge that he had asked Vanara to “name his price” in return for undermining a parliamentary inquiry into early allegations of wrongdoing at Eskom. The corruption charge was laid against Bongo in 2017 by the DA’s leader John Steenhuisen, who was chief whip at that time. 

Vanara reported the approach to his parliamentary seniors and continued with the inquiry, which first laid bare how senior executives at the utility furthered the business interests of the Gupta brothers.

Hlophe faulted Vanara for reporting the matter to Modibedi Phindela, the secretary to the National Council of Provinces, and Penelope Tyawa, the acting secretary of parliament, instead of the police.

He found that there were material discrepancies in their testimony, having questioned why Tyawa said Vanara was “offered” a bribe, but Phindela termed it “promised” a bribe. 

Acting Western Cape director of public prosecutions Nicolette Bell said the issue of witness credibility was not such that it could lead to a conclusion that no reasonable court would deliver a conviction. 

Her application for leave to appeal also faults the court’s conclusion that it was difficult to accept Vanara’s claim that Bongo’s approach was attempted bribery, because it was not in his power to collapse or delay the inquiry.

It was immaterial whether Vanara was in a position to do so, and did not undermine his credibility as a witness, the application states.

“The trial court erred by applying the elements of the offence of corruption by only finding that it was difficult to accept that a senseless and futile act to bribe somebody to act beyond the scope of their power, as the truth.”

Bongo was appointed as state security minister in the Zuma administration around the time he allegedly tried to bribe Vanara. He was arrested in 2019, but has refused to relinquish his seat in the legislature.

“It is just a waste of taxpayers’ money, it does not make sense to me,” Bongo said on Wednesday. “How do you appeal a Schedule 1 offence that is based on gossip? There are dark forces putting the NPA up to this.”

In a separate case, he faces corruption charges in Nelspruit relating to a fraudulent land transaction involving the Mpumalanga department of human settlements.

Hlophe is awaiting the findings of the Judicial Service Commission after a tribunal held in December interrogated his alleged attempt to influence Constitutional Court judges in 2008 to rule in favour of Zuma.

Should he refuse leave to appeal, the state could petition the Supreme Court of Appeal  directly.