WRAP | Judge to rule on Mapisa-Nqakula bid to block corruption ...

Potterill says she will give her ruling on this application on 2 April. The state undertakes not to arrest Mapisa-Nqakula until that ruling is delivered. We adjourn.

-Karyn Maughan

Willis wraps up by asking the judge if, should she not grant the orders sought by the Speaker, she can order that the state and defence engage with each other over the future progress of the corruption prosecution against Mapisa-Nqakula.

Gwala says there is no need for this - and says he does not have any instructions on Willis' request that the judge issue "some form of protection" for Mapisa-Nqakula until Potterill gives her ruling. The judge leaves so she can establish when she will give her judgment on this case. 

-Karyn Maughan

Willis accuses the State of treating Mapisa-Nqakula with "continual threats" and "continual terror tactics". He has also asked Potterill to grant Mapisa-Nqakula "some form of protection" until she delivers her ruling. 

-Karyn Maughan

Willis accuses the State of being "unreasonable" and irrational". He has again accused the State of leaking the 204 witness statement and says that this has resulted in Mapisa-Nqakula becoming an "accused" person.

-Karyn Maughan

Willis again accuses the State of "delinquent" conduct in its efforts to arrest and prosecute Mapisa-Nqakula.

-Karyn Maughan

Willis again argues that the two-week period asked for by Mapisa-Nqakula's lawyer (before she could be represented by him at her first appearance) was "reasonable". He gets visibly aggravated when Potterill questions the effect of the interim order that Mapisa-Nqakula is seeking and suggests that it will block her arrest.

Willis responds that the order will only be interim and will simply block the State from "unlawfully" arresting Mapisa-Nqakula. 

-Karyn Maughan

Willis gets upset because Potterill interrupts her. She says that he has 15 minutes to conclude his argument. He argues that Mapisa-Nqakula is entitled to be represented by a lawyer of her choice (who is only available to represent her on 3 April). 

-Karyn Maughan

Willis now replies.

-Karyn Maughan

Gwala says widespread reporting on the case against Mapisa-Nqakula has already damaged her reputation. He concludes.

-Karyn Maughan

Gwala says Mapisa-Nqakula and her lawyers have failed to make any specific allegations about who is allegedly leaking information to the media. He says they have failed to say "who" leaked the section 204 statement to the media and insists the NPA has not leaked any information to the media - despite details of the 204 statement making their way into the Sunday Times.

-Karyn Maughan

Gwala says it "can never be urgent" for an accused to have access to the docket against them before they are even formally charged. He stresses that the NPA's processes can't be dictated by the status of an accused person.

If this was the case, he says, "it would collapse the justice system". 

-Karyn Maughan

Gwala argues that Mapisa-Nqakula's argument that Potterill should have a "judicial peek" at the case against her is, essentially, a "review via the back door". It is not for a judge to fulfil roles played by the police and the State in deciding to charge an accused, he adds. 

Gwala points out that Mapisa-Nqakula has multiple legal representatives in court today - and asks why they could not have simply taken her to her first corruption trial appearance. 

-Karyn Maughan

"The law knows no positions," Gwala says.

-Karyn Maughan

Gwala also stresses that the ruling that Mapisa-Nqakula is relying on to justify her interdict application against the State related to former president Zuma's "unlawful" private prosecution of President Ramaphosa. The prosecution against Mapisa-Nqakula is not unlawful, he says.

Gwala adds that Mapisa-Nqakula is essentially trying to dictate the terms of her own prosecution to the State - something he says would set a very dangerous precedent, if it is allowed.

-Karyn Maughan

Gwala is clearly unconvinced that Mapisa-Nqakula and her lawyers have shown that she needed to urgently interdict the State from arresting her - rather than waiting for the timeframes that they had previously set out in their application filed on Friday. He says their decision to force the State to respond to the case today is "an abuse of process". 

-Karyn Maughan

Gwala stresses that the NPA never threatened to arrest Mapisa-Nqakula. Instead, he says, the State asked her to hand herself over to the authorities at a police station (with her lawyers) and then to appear at court. This is a "procedural step", he adds. 

-Karyn Maughan

Gwala tracks the history of the NPA's efforts to contact Mapisa-Nqakula and to seek her presence at her first court appearance for corruption.

Mapisa-Nqakula was first contacted by an ID investigator on 8 March - and informed about the decision to prosecute her had been taken on 9 March. 

-Karyn Maughan

Potterill agrees that accused persons are entitled to legal representation, but "not to specific legal representation".

-Karyn Maughan

Kerr-Phillips concludes. NPA counsel Makhosi Gwala SC now argues that Mapisa-Nqakula has failed to argue that she will not be able to get substantial redress in the normal course of events.

He asks if it is in the interests of justice for the NPA to be forced to do its work in accordance with the timetables of a defence attorney, as the State contends Mapisa-Nqakula is trying to force it to do.

-Karyn Maughan

Kerr-Phillips says the "judicial peek" by Potterill is particularly justified by the fact that the case against Mapisa-Nqakula is built on the evidence of a section 204 witness - someone who is implicated in the crime that they testify about. 

-Karyn Maughan

Kerr-Phillips stresses that the purpose of arrest is "only" to secure the presence of an accused person in court. It's not to "humiliate" or "punish" an accused, he adds. 

Like Willis, he argues that the state wants Mapisa-Nqakula to implicate herself when she subjects herself to what they contend is an "unlawful arrest".

He again argues that Potterill should have a "judicial peek" at the evidence against Mapisa-Nqakula. And what would happen if she had a peek and said "arrest", the judge asks. Kerr-Phillips argues she should not do so - as there is no counter-application for this relief by the State. She responds that this would be "an exercise of my discretion". 

-Karyn Maughan

Kerr-Phillips argues that police standing orders make it clear that "arrest is a last resort" to bring a person before a court. 

-Karyn Maughan

Kerr-Phillips argues that the state admits that Mapisa-Nqakula has a right to be presumed innocent until proven guilty, but contends that its decision to arrest her shows that they are not according her that right.

Potterill responds that she does not understand this submission as it would imply that "no one would ever be arrested".

-Karyn Maughan

Potterill is clearly unhappy about Mapisa-Nqakula's argument that she should take a "judicial peak" at the evidence that the State says justifies the corruption case against the Speaker.

She asks what she should do then: take over the role played by the National Director of Public Prosecutions? 

-Karyn Maughan

Advocate Graham Kerr-Phillips is now arguing about the issue of arrest.

He begins by arguing that the State has made a number of significant "concessions" in response to Mapisa-Nqakula's application.

He says the State's submissions that it won't oppose bail for Mapisa-Nqakula, as she was not a flight risk, in fact bolsters her case that she should have been summonsed to appear in court - and should not be arrested. 

-Karyn Maughan

Willis now tells Potterill that Mapisa-Nqakula's lawyers are "certain that the State is intercepting our communication". The State has denied this.

Willis further argues that Mpisa-Nqakula has a right to not have her vocation as Speaker "imperilled" by a potential arrest.

-Karyn Maughan

Potterill is clearly losing patience. She urges Willis to move on.

-Karyn Maughan

Willis argues that Mapisa-Nqakula's constitutional rights are "already being infringed".

He relies on Judge Roland Sutherland's ruling on President Cyril Ramaphosa's successful application to interdict the private prosecution summons issued against him by former president Jacob Zuma to bolster the case for Mapisa-Nqakula to be granted an interdict against the State.

This ruling was, however, delivered in relation to a private prosecution where there was zero evidence that Ramaphosa had even committed a crime - not a prosecution instituted by the State, which says it has a "strong" case against the Speaker. 

-Karyn Maughan

Potterill tells Willis that he has been arguing for 45 minutes and says she will give Mapisa-Nqakula's legal team a further 30 minutes to complete their arguments. 

-Karyn Maughan

Willis lists the reasons why Mapisa-Nqakula's lawyers argue that she should not be arrested - including that she won't harm herself or potentially be harmed by anyone else and won't interfere with witnesses.

-Karyn Maughan

Willis is suggesting that the NPA has unreasonably refused to provide Mapisa-Nqakula with an undertaking that they won't arrest her, pending her 9 April interdict application against the State.

He again accuses the State of "leaking" information to the media, which he says knows more about the case against the Speaker than she does.

Potterill asks how this is relevant to Mapisa-Nqakula's case. He responds that - given the alleged leaks of the evidence against Mapisa-Nqakula - the State cannot withhold the evidence it has against her.

-Karyn Maughan

Willis argues that Mapisa-Nqakula has the same rights as everyone else, but adds that she has a "reputation, more than most". He adds that she has a "good reputation". 

-Karyn Maughan

Willis again stresses that the ID's claims that Mapisa-Nqakula had agreed to hand herself over on Wednesday is "disputed". She has claimed that she was pressurised to hand herself over on Wednesday, but refused to do anything without her attorney.

Willis argues that investigators were "trying to strong-arm" the Speaker. 

-Karyn Maughan

Willis denies the State's accusations that May has been delaying the progress of the case against Mapisa-Nqakula, as claimed by the State.

-Karyn Maughan

Willis is now suggesting that the ID's search and seizure of Mapisa-Nqakula's home was unlawful, because her lawyer was not present when it happened.

Potterill asks him if he's pursuing any relief in relation to that claim. No, he says.

-Karyn Maughan

Willis argues that Mapisa-Nqakula is not arguing for any other rights that ordinary people are entitled to.

Potterill asks whether he would come to court and argue that an ordinary person shouldn't be arrested. Or is this non-arrest treatment only given to "important people", she asks. She then questions Willis about what particular facts underpin his argument that Mapisa-Nqakula should not be arrested. 

- Karyn Maughan

Despite fierce denials from the NPA, Willis argues that the State "leaked" a 204 witness's statement implicating Mapisa-Nqakula in corruption to the media in early March. 

-Karyn Maughan

Willis: "It's no secret who our client is. It's no secret that she's in her late 60s."

-Karyn Maughan

Willis is reading out May's letter to the State, where he agreed that Mapisa-Nqakula would hand herself over (with him) on 3 April - as he was not available until then. May added that he wanted to provide information to the State that may dissuade it from arresting Mapisa-Nqakula. 

-Karyn Maughan

Willis says Mapisa-Nqakula and her lawyers "had hoped" that, by launching her first application, the state would "back off" from arresting her, and the matter may then have been resolved.

Judge Potterill asks: "How would it have been resolved?"

Willis responds that Mapisa-Nqakula's lawyer wanted to meet with her and the police on 3 April so that she could be processed.

-Karyn Maughan

Mapisa-Nqakula's advocate Reg Willis SC says she has elected not to file a replying affidavit.

He explains that she is seeking an interim interdict to block the State from arresting her, pending the outcome of her first interdict application - where she seeks an order blocking her arrest and granting her access to the evidence against her.

He says the Speaker was forced to bring this application because the State would not give an undertaking that they would not arrest her, pending the resolution of her first application.

- Karyn Maughan

May: "I submit that my client's Constitutional rights are established above as well as her reasonable apprehension of harm in the event of arrest. I submit that the balance of convenience in the granting of an interim order pending the finalisation of the main application, which I submit is the threshold in this interim application, by far favours my client and not the State. There can be no prejudice to the State from the granting of the relief sought, and 'judicial peek', because they already assessed that prejudice and found there was none when they released in particular the section 204 statement to the media".

Manyathi has denied that the state released the section 204 witness statement to the media.

-Karyn Maughan

May has also raised concern about the potential interception of his phone calls by the state - based on the fact that an investigator knew about the very recent birth of his child and a journalist appeared to know which advocate he was planning to brief to represent Mapisa-Nqakula.

Manyathi has strongly denied that the NPA intercepted Mapisa-Nqakula or her lawyers' calls.

- Karyn Maughan

May argues that "the State's case against my client, underpinned by an underwhelmingly thin investigation riddled with irregularities, which is so weak that it could never justify the infringement and imperilment of my client's constitutional rights associated with arrest and arraignment of a citizen, let alone her official position as the Speaker of Parliament".

- Karyn Maughan

Manyathi has argued that Mapisa-Nqakula can't argue that there's no case against her - as she actually does not know what the evidence against her is.

- Karyn Maughan

May argues that the NPA's refusal to provide access to the section 204 witness's statement and related documents "should not be a device to prevent my client avoiding arrest when there can be no case for her arrest".

He says that, if there is any doubt about the strength of the state's case against Mapisa-Nqakula, the court "ought with respect to take a 'judicial peek'" at the evidence against her.

"An unlawful arrest and arraignment should not be allowed to become pre-trial punishment. The NPA should not be allowed to arrest first and investigate later," he says.

- Karyn Maughan

In an affidavit filed over the weekend, Mapisa-Nqakula's attorney, Stephen May, accuses the NPA of "irregular conduct" in not disclosing the statement given by the section 204 witness against her.

He wants the state to disclose "what was promised to the section 204 witness including as her method of avoiding her trial in that 204 witnesses case against her, which has now been withdrawn".

This would also include disclosure of "her representations escalated to the NPA, the docket in her case and the discourse between the prosecutor and the investigation officer as to why she should be afforded the opportunity of a section 204 indemnity", he says.

The state is adamant that Mapisa-Nqakula is not entitled to this information.

- Karyn Maughan

Mapisa-Nqakula has the ability to respond to the State's answer to her application with a reply. If she does not dispute the evidence given by Manyathi, it will stand.

- Karyn Maughan

"I again reiterate that the calls of the attorney or even those of [Mapisa-Nqakula] herself have not been intercepted by the NPA.

"I cannot with certainty say that the calls have not been intercepted at all by the media as I have no knowledge of same, however the NPA has no knowledge of the interception if any and puts [Mapisa-Nqakula] to the proof thereof", says Manyathi.

- Karyn Maughan

Manyathi also denies allegations by Mapisa-Nqakula's lawyers that their calls were unlawfully intercepted.

- Karyn Maughan