Why Hlophe got it wrong on Bongo corruption case
ANC MP Bongani Bongo says he is ready for a retrial after the Supreme Court of Appeal overturned his acquittal on corruption charges.
"I have done nothing wrong. I have no qualms and if they want the trial to start afresh then I am ready," Bongo told Sowetan on Monday.
Bongo was acquitted of corruption in February 2021 by the then judge president of the Western Cape John Hlophe, who has since been impeached.
However, on Monday the SCA ordered that Bongo go back to court and start his corruption trial from scratch.
Acting judge John Smith said Hlophe had made "mistakes of law" and had those not been made, Hlophe would have found that there was sufficient evidence to convict Bongo.
"I am also satisfied that there are reasonable prospects that the respondent would have been convicted of either the main or alternative charges mentioned in the indictment if the mistakes of law had not been made," said Smith.
However, speaking to Sowetan Bongo said: "I was not judging the case. If they want me back I will go. I don't have a problem. I am a law-abiding citizen, so if the judgment found something is wrong then I must go [back to court]. My story was not presented and the judge at the time said I have nothing to answer so if they give it to another judge I am prepared to go and answer.
"I called my lawyers and asked that they put an earlier date so that we can know the final verdict. I am ready to subject myself to any process. I am happy to start the case afresh because people were concerned and appealed [the matter] so we need to clear it so that everyone can see that I have done nothing wrong."
Hlophe had found Bongo not guilty of attempting to bribe parliament’s Eskom inquiry evidence leader Ntuthuzelo Vanara.
Hlophe dismissed the case after Bongo's lawyers applied for a discharge at the end of the state's case.
The application was filed on the basis there was no evidence on which a court would find him guilty.
Allegations were that on October 10 2017, Bongo had offered undue gratification to Vanara for him to fake illness or assist the accused in delaying and/or stopping parliament's inquiry into Eskom’s affairs.
However, Smith said: "There can, in my view, hardly be a more straightforward and unambiguous account of the unlawful offering of gratification to a public officer in order to induce him to perform a proscribed act.
"That the trial court was oblivious to this unequivocal and overt evidence of the commission of the crime of corruption can only be ascribed to its fundamentally erroneous understanding of the elements of that crime."
Smith said the evidence led by the state constituted prima facie evidence that Bongo had committed the crime of corruption.
He said Hlophe was of the "erroneous view" that Bongo's request for Vanara to collapse the inquiry could only constitute the crime of corruption if the latter had been offered a specific sum of money as gratification.
"Apart from it conflicting with established legal principles, that understanding was oblivious of the purposely wide definition accorded to ‘gratification’ in terms of s 1 of the Precca [Prevention and Combating of Corrupt Activities Act]. In my view, the finding is manifestly wrong," Smith said.
"Moreover, the trial court’s error was not confined to an analysis of the evidence to determine whether the elements of the crime of corruption had been established – in which event it would have been an error of fact – but extended to an assessment of the evidence based on an erroneous understanding of the legal elements of the crimes with which the respondent had been charged."
Smith said that finding was a material misdirection by the court on a question of law.
