Go after the high-up apples and don't just pick up the fallen fruit
Until the big fish are prosecuted, the resolve of the NPA to uphold the rule of law will be questionable
The National Prosecuting Authority (NPA), under new leadership since the beginning of the month, has decided to prosecute a matter in which the Special Investigating Unit reported that a prosecution was indicated 10 years ago. In the pre-Shamila Batohi era, the NPA took the attitude that there was no evidence of corruption available to it on which to prosecute those involved in the procurement by the department of correctional services of goods and services from Bosasa.
According to corroborated evidence by former Bosasa COO Angelo Agrizzi before the statecapture commission, the Bosasa police docket was shared with former president Jacob Zuma’s good friend Dudu Myeni, who made it available to Bosasa. Security video footage of the two of them and current police minister Bheki Cele visiting Bosasa was deleted on Bosasa’s instructions, according to other evidence given to the commission. Clearly, only some of those involved graced the dock in Pretoria on February 6. There are warrants for the arrest of further suspects, one of whom is overseas, in the same matter.
The best-known face in the dock is that of Agrizzi, who gave the television cameras a smile and cheery wave as he made his way to the dock. Agrizzi’s evidence before the Zondo commission blew the lid off the corrupt activities of those involved: he is a self-confessed racist who either lied under oath or was mistaken about the Sunday Times giving him a right of reply to an article it wrote concerning him. The lengthy testimony he gave to the Zondo commission and the material evidence he produced amount to his confession of corruption on a grand scale.
The procurement of services from Bosasa by correctional services was so irregular, the tenders so fixed and the return so poor that former parliamentary portfolio committee on correctional services member Dennis Bloem was able credibly to describe the whole relationship as one of money laundering when he gave evidence to the commission. Of those in the dock, both Agrizzi and former Bosasa CFO Andries van Tonder have confessed to their wrongdoing. Those they corrupted, Patrick Gillingham and Linda Mti, have not confessed, and nor has Bosasa boss Gavin Watson, who is most likely the suspect currently overseas. Bookmakers will doubtless give long odds on his ever returning.
If Gillingham and Mti are advised to plead not guilty when charges are put to them, and Agrizzi and Van Tonder are required to plead rather than turn state witness in the prosecution, interesting questions and consequences follow. Under section 204 of the Criminal Procedure Act it is possible for accused persons to co-operate with the prosecution authority by giving state evidence against their co-accused. If the court is satisfied that a frank and honest account has been given by the accused person who testifies for the state, discharge against prosecution is possible in law.
This is how section 204(2) puts it: “If a witness referred to in subsection (1), in the opinion of the court, answers frankly and honestly all questions put to him (a) such witness shall, subject to the provisions of subsection (3), be discharged from prosecution for the offence so specified by the prosecutor and for any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified; and (b) the court shall cause such discharge to be entered on the record of the proceedings in question.”
The reference to “witness” is, of course, to those who choose to give evidence for the state. The reference to subsection (3) is of no significance because preparatory examination proceedings no longer take place. If Agrizzi and Van Tonder are to be used as state witnesses, their treasure trove of evidence before the Zondo commission becomes available to the prosecution. If not, the prosecutor will have to rely on the material gathered by the Special Investigating Unit all those years ago, duly supplemented, to secure a conviction of all of the persons and companies targeted in the proceedings that started on February 6.
It is of some importance that the status of Agrizzi and Van Tonder in the proceedings is made known without delay. Was the cheery wave to the cameras mere bravado, or was Agrizzi signalling that his section 204 deal, always subject to the imprimatur of the court, is in the bag?
If those in the same boat or even potentially in the same boat as Agrizzi and Van Tonder do not soon hear that the NPA is willing to allow an opportunity to testify for the state in criminal proceedings to those it accuses of state capture, grand corruption and kleptocracy as forms of “corrupt activities” under the Prevention and Combating of Corrupt Activities Act, the Zondo commission’s prospects of hearing further evidence from whistle-blowers implicated in corrupt activities will be sabotaged. There will be no upside in confessing by coming forward to share information with the commission.
Those who appeared in court on February 6 are allegedly bad apples, either low-hanging fruit easily plucked in proceedings in which section 204 witnesses Agrizzi and Van Tonder can nail them, or fallen fruit who have confessed to justice Raymond Zondo and will now face the full wrath of the criminal law of the land.
While the timing of the arrests and the appearance in court will be most welcome to President Cyril Ramaphosa, the day before he delivered his state of the nation address, it is somewhat underwhelming that the higherhanging fruit available for the picking by the NPA has not been included. Myeni, Zuma and Cele have a great deal of explaining to do if the deleted video footage is proved via the mouth of the man who deleted it. Myeni needs to explain the photographs of the Bosasa docket Agrizzi took at her Pretoria hotel and the provenance of the regular “donations” in cash by Bosasa to the Jacob Zuma Foundation via her. None of these high-up apples is being picked on the evidence available to the public at this stage.
It would be a great pity if the arrest of Agrizzi and Van Tonder, after the clean breast they made of their involvement in the Bosasa corrupt activities before the Zondo commission serves to prevent others involved in other transactions from coming forward to testify to that commission. If the NPA wishes to burnish its reputation for acting without fear, favour or prejudice (which is what the constitution requires of it) the Hawks and police dockets in respect of the procurement of security upgrades for Nkandla (December 2013), the termination of the services of Mxolisi Nxasana as national director of public prosecutions (July 2015) and the more recent cases of perjury by cabinet ministers, should receive the type of urgent attention accorded to the low-hanging and fallen fruit trotted out in the Special Commercial Crime Court on February 6.
It is also high time the Moloi inquiry report received NPA attention, especially its proposal that Cele be investigated for corruption in the procurement of leases for police headquarters in Pretoria and Durban. Until “big fish”, including the former president and several sitting cabinet ministers, are prosecuted, the resolve of the NPA to uphold the rule of law as requested by the diplomats of the US, UK, France, Switzerland and Germany will be questionable. That two suspects are our current ministers of justice and police speaks to the gravity of the situation.
● Hoffman, an advocate, is director of Accountability Now.