Durban - Why were charges withdrawn against two “politically connected” accused in the R144-million “Amigos” corruption and racketeering trial and not the other accused when the same unsubstantiated evidence was relied on?
The State’s refusal to provide relevant documentation and information as to why it demonstrated a wanton disregard for the ability of the courts to scrutinise the fairness of the decision.
These issues were raised in the Pietermaritzburg High Court on Monday when argument was heard by Cape Town billionaire Gaston Savoi, his company Intaka Holdings, and his colleague, Fernando Praderi’s legal team, over documents.
They had been charged along with ANC politicians Mike Mabuyakhulu and Peggy Nkonyeni. However, in August 2012, charges against the latter two and four others were withdrawn.
The politicians had been among 18 accused - various individuals and five companies - named in the State’s initial indictment.
The charges related to the awarding of a R144-million tender for the supply of water purification plants to KwaZulu-Natal hospitals.
It was alleged that the tender was awarded in exchange for a R1-million donation made to the ANC by Savoi.
At the time Mabuyakhulu was the provincial treasurer of the ANC, while Nkonyeni was the health MEC. Both resigned this year as MECs after being axed in a cabinet reshuffle.
Gaston and his co-accused want the National Prosecuting Authority (NPA) to provide the documents that led to the decision to remove advocate Ncedile Dunywa from the case and letters and correspondence referred to by KZN Department of Public Prosecutions advocate Moipone Noko in her notes recording her decision to withdraw the charges.
Acting on behalf of them, advocate Max du Plessis submitted that the documents requested could advance his clients’ case in a permanent stay of prosecution application.
The basis of that application was that the State had already violated the applicants’ rights and had acted to undermine the administration of justice.
Du Plessis had a tough time trying to persuade Judge Jerome Mnguni to grant the application. The judge remarked that it was up to the NPA to decide who to charge.
He also said that if it turned out the prosecution was malicious, his clients could ventilate it at trial. The judge went through each item sought and asked Du Plessis what authority he relied on to get the documents.
Willem Schalk Burger van der Colff, the applicants’ attorney, said in court papers that in the permanent stay of prosecution application, his clients demonstrated a consistent violation of their constitutional rights which amounted to a patently unfair investigation and prosecution.
One violation was the unlawful, irrational and inexplicable refusal by Noko to withdraw charges against some of the applicants in circumstances where charges had been withdrawn against certain of their co-accused - on the grounds that the evidence against them was unconvincing, unsubstantiated and insufficient to ground a conviction beyond reasonable doubt.
“This is the same unsubstantiated evidence which the State seeks to rely on in the criminal charges against the applicants. The withdrawal of charges against only certain accused demonstrates the arbitrary and biased manner in which the decisions to prosecute had been approached,” said Van der Colff.
He said that following a previous application to compel the discovery of documents, a judge ordered the State to produce the documents which had been requested. Most but not all were produced.
In a separate application brought by the DA , a different judge ordered Noko to reveal why she withdrew the charges.
Van der Colff added that in April various engagements took place regarding a possible resolution of the permanent stay application and a potential settlement of the criminal case, including the withdrawal of charges.
The discussions had not been finalised and no resolution was reached. By that time, it was necessary for the legal team to continue with preparations with the permanent stay application.
Acting for the State, advocate Roshnee Mansingh said all the notes, memoranda and documents the State had, had been provided to the applicants.
“There is nothing besides what has been provided.”
Mansingh said the decision to remove the prosecutor fell in the authority of the NPA and did not prejudice the matter.
“This application is brought to throw a spanner in the works. The purpose is to delay the case. It is really a fishing expedition.”
Judgment was reserved.
Nkonyeni said on Monday that the court withdrew the charges.
“We did not withdraw the charges, it is difficult for me to comment.”
Mabuyakhulu said there was no case against him as he did not have any dealings with Savoi.
The withdrawal of charges against him had absolutely nothing to do with political connections.