The state’s alleged failure to “properly” disclose millions of pages in evidence related to the R191-million fraud and corruption case against former top cop Khomotso Phahlane forms the basis of his latest attempt to have the matter dismissed.
On Wednesday, at the Johannesburg specialised commercial crimes court, judgment was reserved on the application by Phahlane and former South African Police Service deputy national commissioner, Bonang Mgwenya, to have the combined 22 fraud and corruption charges against them struck off the court roll – on the grounds that the state failed to properly disclose the case docket to them.
The charges against them relate to a 2016 contract to fit Gauteng police vehicles with sirens, markings, radios and other equipment, with the state claiming that the tender was fraudulently and corruptly awarded. This includes price inflation that allegedly lost the state more than R191-million.
There are 11 other accused in the matter, including the company Instrumentation for Traffic Law Enforcement, represented by owner Vimpie Manthata, who allegedly doled out gifts such as a luxury BMW X5 to Mgwenya after his company received the contract.
On Wednesday, Phlahlane’s legal representative Piet du Plessis argued that the defence had struggled to open certain folders in the voluminous case docket that the state handed over in the form of an external hard drive, and that it took 10 months – from November 2020 when the trial was expected to begin – to get assistance.
This, Du Plessis contended, prejudiced his client in preparing his defence. Du Plessis argued further that it was unreasonable for the state to expect the defence to study the detailed case docket without specifying which portions of the case file is relevant to the charges against Phahlane.
“You cannot dump millions of pages on the accused [Phahlane] and expect him to wade through to determine what is relevant. That’s all we’re asking from the state: disclose what is relevant,” he said.
His contentions were rejected by prosecutor advocate Richard Chabalala, who said all the accused were given the case docket, and accused Phahlane of filing unnecessary applications in order to avoid trial.
“As of today, Accused 7 made not less than five attempts to get the case removed from the court roll. It is hard to not expect him to make another attempt to have the case removed from the court roll if he does not succeed in the instant attempt,” Chabalala said.
He also rejected Mgwenya’s assertions of a lack of proper disclosure as argued by her legal counsel, advocate Kenny Oldwage, who said the technical struggles his client had in accessing certain files were a “deliberate failure by the state to make a proper disclosure” aimed at ambushing her at trial.
Chabalala rebuked Oldwage’s argument, saying Mgwenya’s legal counsel had mentioned in court last April that he would launch an application by 28 May 2021 to strike the case off the roll if it emerged that the state had not made proper disclosures. The transcripts of Oldwage’s submission were submitted in court. Chabalala said Oldwage had failed to file the application on his own set deadline, and was doing so now to waste time.
“The 28th of May 2021 came and passed but Mr Oldwage did not file a substantive application for the removal of the case from the court roll,” Chabalala said.
“It should also be noted that on the day [30 April 2021] when Mr Oldwage stated that he would file an application for removal of the case from the court roll, he did not tell the court that he had obtained full instructions from Accused 15 [Mgwenya] and/or that they had experienced specific problems with what was disclosed to them by the state.”
Judgement in Phahlane and Mgwenya’s application is expected to be handed down in May. All accused are out on bail.