The DPP Western Cape vs. Bongo

South Africa

06.05.2024

Criminal

Admissibility and weight to be given to a previous consistent statement is a legal issue, not a factual one

The Respondent was arraigned in the high court on charges of corruption. The State alleged that, the Respondent had committed the crime of ‘corrupt activities relating to public officers’ under the Prevention and Combating of Corrupt Activities Act, 2004 (PRECCA). Specifically, the State alleged that on 10 October 2017, the Respondent wrongfully and intentionally, either directly or indirectly, offered gratification to a Senior Manager of Legal and Constitutional Services in the Office of the Speaker of Parliament.

The State claimed that, the Respondent’s intention was to induce the Senior Manager to fake illness, take sick leave, or otherwise assist the Respondent in delaying or stopping a parliamentary inquiry into the affairs of Eskom. The Respondent pleaded not guilty to all charges and submitted a written plea explanation denying the allegations. At the close of the State's case, the Respondent applied for a discharge in terms of section 174 of the Criminal Procedure Act, 1977 (CPA). The high court granted the Respondent's application and discharged him. The State then filed an application to reserve six questions of law for consideration by this Court under Section 319 of the CPA. The high Court dismissed the State's application without providing reasons.

The high court made several material mis-directions on questions of law. The high court misconstrued the elements of the offences of the respondent which he was charged with, particularly the crime of ‘corrupt activities relating to public officers’ under PRECCA. The SCA emphasised that the question of ‘whether the proven facts in a particular case constitute the commission of a crime’ is a question of law, not a factual inquiry. The high court's findings on the probabilities of a bribe being offered were based on a misunderstanding of the legal elements of the offences.

The high court's reliance on this previous statement was a material misdirection on a question of law. Supreme Court emphasised that the admissibility and weight to be given to a previous consistent statement is a legal issue, not a factual one. The high court made several mistakes of law that warranted the reversal of the discharge order and a retrial. Supreme Court determined the reserved questions of law in favour of the State. Supreme Court set aside the discharge order, and remitted the matter for trial de novo before a differently constituted court.

Tags : Corrupt activities Discharge order Legality

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