/ 2 April 2024

Judge dismisses Mapisa-Nqakula’s ‘pre-emptive strike’ in arrest saga

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Speaker Nosiviwe Mapisa-Nqakula. (Photo by Felix Dlangamandla/Daily Maverick/Gallo Images via Getty Images)

Nosiviwe Mapisa-Nqakula wanted criminal suspects to “control” the justice system, Judge Sulet Potterill said as she dismissed the embattled speaker’s “speculative” attempts to stop her arrest on corruption and money-laundering charges.

On Tuesday, in the Pretoria high court, Potterill ruled that Mapisa-Nqakula’s legal challenge — which was heard in court on 25 March — was not urgent, as the speaker had argued, because the National Prosecuting Authority (NPA) stated that it would not oppose bail after her expected charging on 12 corruption counts and one of money laundering. 

Potterill added that the timeframes for the application Mapisa-Nqakula set were “unreasonable” because the speaker filed her urgent application on Saturday, 23 March, setting down arguments for two days later. 

The ruling was encouraging for the NPA, with its spokesperson advocate Mthunzi Mhaga saying that “the wheels of justice will now be in motion”. 

“We have maintained that [the speaker’s application] was unprecedented and it was unnecessary for us to be [in court], and we have always maintained that the process of arrest will be done seamlessly,” Mhaga said, speaking to reporters after the judgment. 

Mapisa-Nqakula’s criminal charges, the NPA claims, stem from bribes worth R4.55 million that she allegedly solicited and received from a defence contractor between 2016 and 2019 during the speaker’s nine-year defence and military veterans ministerial tenure, which ended in 2021.

The judge said Mapisa-Nqakula’s application was a “preemptive strike” because “the [likely] arrest on its own cannot create urgency”. 

Potterill added that the NPA’s Investigating Directorate — which is leading the inquiry and prosecution of the speaker’s graft case — had allowed Mapisa-Nqakula to hand herself over for arrest at the Lyttleton police station for two weeks before she launched her application, calling this “a courtesy to what ordinary citizens are afforded”.

Mhaga said the NPA opened up what the judge called the “courtesy” of handing oneself over for arrest to “every citizen who has a lawyer”.

“It is nothing untoward, it is not unprecedented,” he said.

In her application, Mapisa-Nqakula asked the court to exercise a “judicial peek” and look at the criminal docket against her, arguing that the state’s case was “weak”, and that arresting her would be “unlawful”. 

However, the judge said she would not look at the docket, adding that ruling her arrest as unlawful would be “speculative”. 

“If the court grants such an order, the floodgates will be opened,” Potterill stated, saying other criminal suspects would take advantage of the ruling to stop their arrests.

“Any suspect will merely set out in their founding affidavit that an arrest in [the] future will be unlawful. The whole criminal justice system will fail and [would] be controlled by suspects,” the judge said. 

She added that Mapisa-Nqwakula’s founding affidavit was laden with “emotive garnishing of which the court cannot take cognisance and make factual decisions”.

Potterill was alluding to the speaker’s assertion that the NPA wanted to humiliate her based on her position as the head of one of the three arms of the state.

“In my case, my position as Speaker of the National Assembly of Parliament and [a] member of the ruling African National Congress, with the so-called ‘step-aside rule’ carries the further humiliation of publicity and public speculation, as well as the limitations on the continuation of my office and vocation,” she stated in her affidavit. 

But Potterill dismissed Mapisa-Nqakula’s argument, ruling that the speaker’s claims were “self-created” and not to be entertained by the court. 

The judge slapped her with a costs order, including paying for two counsels used by the NPA.