‘Amigos’ trial: DA’s wish to be granted

2015-09-24 09:24
Mike Mabuyakhulu

Mike Mabuyakhulu (City Press)

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THE Democratic Alliance will soon be privy to documents that could ­reveal why corruption charges were withdrawn against KZN politicians Mike Mabuyakhulu and Peggy ­Nkonyeni in August 2012.

This follows a reserved judgment handed down by Judge Rashid Vahed in the Pietermaritzburg high court yesterday, in which he set aside a ­refusal by KZN’s (then acting) ­director of public prosecutions ­Sophy Moipone Noko to grant the DA’s request for access to information relating to the decision.

Judge Vahed ordered Noko to ­provide the DA with the record ­relating to her decision to withdraw the charges against Mabuyakhulu and Nkonyeni within 15 days.

When the decision was taken to withdraw charges against the two ANC-aligned politicians, Nkonyeni was Speaker of the KZN Provincial Legislature and Mabuyakhulu was KZN MEC for Economic Affairs and Tourism.

At the time the alleged offences were committed (2004 to 2008) Nkonyeni was the MEC for Health in KZN, and Mabuyakhulu was MEC for Local Government, Traditional ­Affairs and Housing.

They were allegedly implicated in 11 out of 54 charges in the indictment.

There were initially 23 accused charged with racketeering, corruption and fraud in what became known as the “Amigos” trial.

The case relates to tenders that were awarded for the supply of water purification and oxygen plants to the KZN health and local government ­departments.

In August 2012 Noko announced the withdrawal of charges against Mabuyakhulu, Nkonyeni and seven others — Lindelihle Mkhwanazi, ­Nozibela Phindela, Jabulani Thusi and Ian Blose, as well as corporate entities Rowmoor Investments, ­Skyros Medical Supplies and Blue ­Serenity Investments.

The trial of Urguguyan businessman Gaston Savoi of Intaka Holdings (Pty) Ltd and the remaining accused is still pending following various legal challenges which delayed the start of the trial.

Currently an application for a ­permanent stay of prosecution is still in the pipeline.

In his long-awaited judgment ­yesterday, Vahed said it appeared that the principal reason for Noko’s ­refusal to provide the DA with the ­information it sought (relating to the withdrawal of the charges against Nkonyeni and Mabuyakhulu) was based on “confidentiality and ­privilege”.

This stemmed from the fact that representations were made by ­Nkonyeni to the minister of Justice. Mabuyakhulu did not make ­representations.

The minister in turn passed the representations by Nkonyeni on to advocate Nomgcobo Jiba, then ­acting national director of public

prosecutions, and via her, to Noko, the judge said.

“As I see it, the first problem with the confidentiality argument is that the third respondent’s [Nkonyeni’s] representations were not made to either the first or second respondents [Noko and Jiba respectively], and then again they were not made in confidence,” said the Judge.

He said Nkonyeni did not make any allegation in her affidavit in support of the contention that her representations were made in confidence or that Noko and Jiba owed her an obligation of confidence in terms of an agreement.

Judge Vahed said in addition that no privilege had been claimed by either Nkonyeni or Mabuyakhulu and said the DPP’s claim in this regard was “vague”.

She had suggested that the ­information which led her to withdraw the charges against the two accused “may be privileged”.

“The applicant [DA] correctly submits this is not good enough. Either it is privileged or it is not,” said Vahed.

The judge added that the “blanket privilege” that existed in pre-constitutional times (with respect to the contents of police dockets) no longer applies.

The judge also agreed with the DA’s argument that it was insufficient for Noko to “baldly allege” that complying with the request for access to information would “somehow interfere with the prosecution or the fairness of the trial”.

He said Noko had to explain why this “could reasonably be expected to happen” if the record was disclosed, and no such explanation was forthcoming.

He said although in affidavits a suggestion was made concerning a “possible improper motive” by the DA for demanding the information, this had not been persisted with during legal arguments in the case. “In any event the question of motive is irrelevant,” he said.

Judge Vahed also said there was no merit in the DPP’s argument that the DA’s application was defective because not all the accused against whom ­charges were withdrawn, had been joined in the application. He said he could not appreciate what interest these accused might have in the matter.

The state has been ordered to pay the legal costs

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