SCA dismisses claim of ‘malicious prosecution’
Former Scorpions deputy head Jeff Ledwaba’s R46m lawsuit against the National Prosecuting Authority (NPA) has been dismissed after the Supreme Court of Appeal (SCA) found no evidence to support his “malicious prosecution” claims over fraud charges.
The SCA ruled it was of “the view that [Ledwaba’s] conspiracy theory is improbable”.
After being appointed deputy head of the Scorpions in 2003, Ledwaba was implicated in the possible misuse of funds by an internal investigating team. He was placed on special leave in 2005 by then NPA head Vusi Pikoli while the investigation continued. Before any charges of misconduct were laid, Ledwaba resigned that same year.
In its 2007 forensic report given to the NPA, PwC said there was a “shortage” of almost R300,000 between internal Scorpions funds given to Ledwaba and those he reimbursed. In 2006, Ledwaba was arrested and charged with 23 counts of fraud and theft.
In a Pretoria magistrate’s court, the NPA alleged he had defrauded the Scorpions when he claimed funds for non-existent transactions, allegedly stealing the amounts for himself.
Glynnis Breytenbach, a senior NPA prosecutor at the time and now a DA MP, led the initial prosecution in 2010. But two years in, Breytenbach was suspended and then resigned from the NPA. Her bosses in the NPA cited alleged abuse of powers in a criminal investigation of the multibillion-rand Sishen iron ore mining deal. A new prosecutor took over from Breytenbach for the rest of the trial.
Ledwaba appealed to the NPA to drop all charges, citing a difficult relationship with his boss and then Scorpions head, Leonard McCarthy. He said he was the target of malicious prosecution. However, the NPA dismissed his claims and proceeded. In 2014, the Pretoria magistrate’s court found him guilty only on four out of 23 charges and sentenced him to 10 years’ imprisonment. On appeal to the high court, he successfully overturned all findings.
In 2018, he returned to the high court, suing the NPA for a reported R46m. He claimed the NPA prosecuted him in 2006, knowing it did not have a case. He named Breytenbach and three others specifically as the wrongdoers. However, the NPA said the evidence it used in its prosecution had been credible, including an internal Scorpions investigation, sworn testimony from credible witnesses, and supporting documentation.
In December 2021, the Pretoria high court dismissed Ledwaba’s claim because there was no evidence the NPA had acted “maliciously” in prosecuting him. Ledwaba appealed this finding to the SCA.
On Friday, the SCA upheld the high court’s ruling, having considered the basis for all the NPA’s charges against Ledwaba.
The SCA noted that even though he was acquitted, the question was whether at the time the NPA started its prosecution the NPA was “of the honest belief” the facts would lead a guilty finding.
Acting appeal judge Fayeeza Kathree-Setiloane, writing for the court, said: “This question must not be confused with whether there is sufficient evidence upon which the accused may be convicted.” That was for the criminal court and was already decided in Ledwaba’s favour.
However, whether the NPA was “malicious” and whether Ledwaba was entitled to damages hinged on whether the NPA had an “honest belief” in its initial evidence.
Kathree-Setiloane went through all the charges demonstrating that, for each one, “the evidence in the docket” supported a probable finding of guilt. For example, she noted sworn statements that spoke about improper procedures and “no credible explanation” from Ledwaba for funding of alleged operations.
Ledwaba claimed this came about due to his acrimonious relationship with McCarthy, who worked with Breyetenbach. But Kathree-Setiloane found this wanting, given that the prosecution continued long after McCarthy moved countries and Breytenbach left the NPA. “I fail to see how this could have led to a conspiracy by at least four [other] officers of the court to destroy his career,” she wrote.
Ledwaba “presented no credible evidence to demonstrate that when the prosecution team took the decision to prosecute him, and when it decided to proceed with the prosecution after considering his representations, they directed their will to doing so in the awareness that reasonable grounds for the prosecution were absent”.