- In February 2021, then-Western Cape Judge President John Hlophe acquitted Bongani Bongo of corruption without requiring him to answer to advocate Ntuthuzelo Vanara’s evidence the former ANC MP had tried to bribe him to halt or collapse Parliament’s Eskom Inquiry.
- Two months later, Hlophe was found guilty of impeachable gross misconduct for trying to influence justices Bess Nkabinde and Chris Jafta to rule in favour of then-ANC president Jacob Zuma in 2008.
- Last week, Hlophe was removed from office after 91% of MPs – including Bongo – voted in support of his impeachment.
Two weeks after John Hlophe became the first judge in South African history to be impeached, the State will ask the Supreme Court of Appeal (SCA) to invalidate his summary acquittal of corruption-accused ANC MP Bongani Bongo – and order a retrial.
In heads of argument filed at the SCA, the National Prosecuting Authority (NPA) argued, that had it not been for “mistakes of law” made by Hlophe in his Section 174 discharge of Bongo on charges of corruptly seeking to collapse Parliament’s Eskom Inquiry, and should Bongo have closed his case without mounting a defence, he would have been convicted of the charges against him.
The State is adamant it presented enough evidence to justify some form of defence from Bongo, a former state security minister who last week was one of hundreds of MPs to vote in favour of Hlophe’s removal from office.
Hlophe was found guilty of impeachable gross misconduct two months after he acquitted Bongo – in a decision that appeared to be, in part, a subverted defence of his own efforts to sway two Constitutional Court justices to rule in favour of then-ANC president Jacob Zuma in 2008.
During the Bongo trial, which ran for two weeks, Hlophe was vocal in his critique of the State’s case, which centred on Eskom Inquiry evidence leader Nthuthuzelo Vanara’s account of how, while he was working as the evidence leader in the inquiry, he had been approached by Bongo and asked to “fake an illness” to prevent that investigation going ahead.
The inquiry was due to start on 20 October 2017.
According to Vanara, Bongo had first called him, three times, on 4 October 2017 – the same day he had scheduled a meeting with the acting chairperson of Eskom, Zethembe Khoza, for the following day in Sandton.
During those calls, Bongo repeatedly sought a meeting with Vanara, who told him he would only be able to meet the following Monday, 9 October 2017.
The pair eventually met at Vanara’s office in Parliament on 10 October 2017.
Vanara testified, after he let Bongo into his office, the MP “told me that he was requested by the acting chairperson of the [Eskom] board to ask me for assistance”.
“When [Bongo] referred to ‘assistance’, I then asked him what the nature of the assistance required was.
“He said that Eskom’s people were worried about incriminating evidence against them and there would be police officials waiting to arrest them.
“I asked him what exactly he meant by ‘assistance’.
“He said the inquiry is Pravin Gordhan’s brainchild and that he was conflicted. He said the inquiry was affecting a number of inquiries.”
In his testimony before the High Court, Vanara said he was confused and asked Bongo again how he could assist.
Bongo then suggested Vanara “fake an illness” and take sick leave so that in Vanara’s absence, the inquiry would not proceed.
Vanara told Bongo he could not assist him.
According to Vanara, Bongo then told him “[j]ust name the price and tell me how you would help stop the inquiry”.
“I will go back to the Eskom people, tell them of your plan to stop the inquiry and the price they would have to pay for your assistance. They will then give me the money and I will hand the money over to you.”
Vanara said his conscience and integrity would not allow him to assist Bongo: “I was cold on my feet. I told him this meeting is over. I opened the door for him and told there is nothing to consider.”
Despite this evidence from him, which was backed up by phone records and testimony from other parliamentary officials, Hlophe found the State had failed to produce enough evidence to require a response from Bongo – and summarily acquitted him.
In his ruling on Bongo’s application for a discharge of the case against him, under Section 174 of the Criminal Procedures Act, Hlophe also found Vanara’s evidence against the MP did not implicate him in the crime of corruption, as defined by the Prevention and Combatting of Corrupt Activities Act (PRECCA).
“The difficulty with Mr Vanara’s evidence is that having a discussion about the delaying or collapsing a parliamentary process is not unlawful in terms of the act.
“The act is very clear that only when an offer of gratification is made in exchange for a prescribed act, i.e. the delay or collapse of the inquiry committee, in favour of Mr Vanara or any other person, only then it becomes a crime,” he stated.
In other words, Hlophe’s ruling found – because Vanara did not reveal what exactly he was offered to delay or collapse the Eskom Inquiry and did not provide any detail on how this bribe would be paid – Bongo’s alleged “discussion” in this regard was not unlawful.
Hlophe also found it was difficult to accept Bongo had tried to bribe Vanara, because the evidence leader did not have the power to permanently stop the Eskom Inquiry and, as a result, such a bribe would have been “futile”.
The NPA said this reasoning was clearly wrong.
“The evidence established that Vanara did not have the power to stop the inquiry but that he had the power to feign illness or take sick leave and, in that manner, assist in delaying the inquiry,” it stated in its heads of argument.
“It is submitted that the court [Hlophe] ought to have concluded that, despite its finding that Vanara lacked the power to stop the inquiry, given the above authority, read with the provisions of Section 25 of PRECCA, this did not constitute a valid defence to [Bongo] in the context of his request to Vanara.
“Failing to find as much amounted to a misdirection in law by the court a quo [Hlophe].”
Within hours of Bongo having allegedly attempted to bribe him, Vanara had reported what he said had happened to four different colleagues at Parliament, who the State maintained did not materially contradict each other in their evidence.
Hlophe, however, found these witnesses had “contradicted” Vanara’s testimony and this “places his credibility as a single witness in question”.
The “contradictions” identified by Hlophe centred on Vanara’s evidence he did not know Bongo was an advocate.
The reason this testimony was important was because Bongo claimed he met with Vanara to prepare “an article to be submitted to the ANC’s presidency” on the consequences of establishing a parliamentary inquiry into Eskom while the State Capture Inquiry could potentially be established to investigate the same issues”.
It is, however, worth noting, at the time Bongo met with Vanara, the Gauteng High Court in Pretoria had yet to rule on Zuma’s legal challenge to then-Public Protector Thuli Madonsela’s state capture report, which had ordered Zuma to establish a commission of inquiry to investigate, among other things, his relationship with the Gupta family.
The NPA has also told the SCA Hlophe was wrong to dismiss Vanara’s evidence as being that of a single witness before he had even heard Bongo’s account of his engagements with the evidence leader.
“Whilst it is so that Vanara’s evidence was that of a single witness as to the alleged utterances of [Bongo] during their meeting in his office on 9 October 2017, the test to be applied at the stage a discharge application is considered is not whether his evidence is clear and satisfactory in all material respects,” the State argued.
“That is the test to be applied upon finalisation of the matter, once the merits of the totality of the evidence are assessed.
“It was this finding that was the cornerstone of the court a quo [Hlophe] granting the discharge of [Bongo].”
The judge president regarded this as a significant contradiction.
Again, the State argued he should have assessed the testimony of these witnesses at the end of the trial, after Bongo had testified and been cross-examined, and then evaluated whose account of events was more believable.
“What the court a quo did was to prematurely assess the alleged discrepancies and improperly attach undue weight to the so-called discrepancies during the discharge application,” the NPA said.
Bongo, represented by advocate Mike Hellens SC, is opposing the State’s application for leave to appeal Hlophe’s decision.
The case will be argued next Wednesday.
© News24