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The defence team in the John Block trial on Monday systematically pulled apart the case against the three ANC bigwigs in an attempt to get the charges withdrawn.
This follows an application by the defence for a Section 174 acquittal against ANC chairman Block, and his co-accused Yolanda Botha (former Head of Department for Social Development), Alvin Botes (former MEC of the Department of Social Development) and Trifecta CEO Christo Scholtz.
The four are facing charges involving R69 million relating to inflated prices being charged for offices that were leased to the Department of Social Development as well as the South African Social Security Agency (Sassa), Department of Agriculture and Land Reform and the Department of Sport, Arts and Culture by Trifecta. The State has alleged that the accused received kickbacks from Trifecta, including company shares, renovations to their properties as well as salary payments.
In his head of argument that the charges should be dropped, defence counsel Jaap Cilliers, representing Scholtz, who was first up on Monday, pointed out that the burden was on the State to prove or disprove the charges against the accused.
“It is not up to the defence to prove the accused’s innocence. The State must prove beyond a reasonable doubt that the accused committed the offences.”
He added that the State relied heavily on the evidence of forensic auditor Trevor White to prove its case, despite the fact that White came in to investigate the case six years after the crimes were allegedly committed.
He added further that White’s evidence was based on what he expected the State’s witnesses to say.
“However, the court was in a better position to hear the evidence of the witnesses themselves, as well as what they said under cross-examination and on each occasion they countered what White said in his testimony.”
Cilliers added that the State also did not call all the witnesses that it said it would to corroborate evidence presented.
“The State tried to prove that there was a corrupt relationship between Botha and the managing director of Trifecta, Sarel Breda (who was killed in a plane crash) by arguing that Botha unlawfully over-rode recommendations of the bid adjudication committee.
“White himself, however, admitted that he was incorrect and that Botha actually only gave effect to the latest recommendation of the bid adjudication committee.”
Regarding the fraud charges against Scholtz, Cilliers said it was clear that the State’s approach was that the fraud charges were proof that there was a corrupt relationship between Botha and Breda.
“The charge sheet states that the accused misrepresented the Department of Social Development, Sassa or the employees of the department but it does not identify the persons who were misled. The basis of a fraud charge, however, is to prove that a specific person has been defrauded. Nowhere does the charge sheet state who the faceless people are who have been misled. No-one was called to give evidence that they were misled.”
He added that not a single witness from Sassa was called to the stand.
“From the Department of Social Development, three witnesses were called but they never presented any evidence that they were misled. Instead it was their testimony that everyone involved acted openly and fairly at all times in the acquisition of office space for the department. In fact officials from the department got information themselves on the going rates for rentals at the time and did their own research. It is ludicrous for the State, therefore, to suggest that the court can convict someone on the evidence it presented.”
He added that no witnesses testified that proper procedures were not followed
“Everything was done according to the rules and regulations.”
Cilliers also stated that it was clear that Breda had not participated in the bid adjudication process and the same was true of Botha.
“She never sat on the committee and delegated the powers to her officials.”
Regarding the amount of office space rented, Cilliers pointed out that the only witness called to testify stated that she had made material flaws in her measurements.
“She testified that she forgot to measure the passages and verandas. You cannot rely on a witness who agrees that she made mistakes.”
He pointed out further that evidence was presented that the prices charged for the rentals were absolutely fair.
“It appears that the only sin Botha and Breda committed was that they had followed the recommendations of the bid adjudication committee, which was the procedure prescribed by law.”
Turning to the corruption charges, Cilliers said that the State needed to prove that there was an agreement between Botha and Breda that gratuity would be given for Botha to act in a manner that was illegal, dishonest, unauthorised or biased in entering the lease agreements.
“No such evidence was presented. Instead the evidence presented was that the Department of Social Development acted at all times openly, fairly and transparent in the acquisition of office space. Neither Botha or Breda at any stage ever interfered with the normal processes of the bid adjudication committee.”
According to Cilliers, Breda offered 10 percent shareholding to Botha because the company wanted to broaden its BEE base, particularly to women and children.
“Our government decided to empower the previously disadvantaged by giving them certain advantages. All the accused did here was comply with government requirements to get contracts.
“The 10 percent shares in Trifecta at the time were also valueless because prior to the death of Breda the company had a negative value. This only changed when Breda’s R111 million life insurance was paid to the company.”
Regarding the improvements to Botha’s house, Cilliers said that according to State witnesses, this was meticulously recorded in the company’s records and even in the financial statements because the intention was that Botha would pay for every cent spent.
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