State's corruption case against Mabuyakhulu and others in failed jazz festival project back on the table
The Supreme Court of Appeal (SCA) ordered the decision of KwaZulu-Natal high court judge Mahendra Chetty, dismissing the state's application for special leave to appeal, be referred to the SCA for reconsideration, and oral argument, including on the merits, if requested by the court.
Mabuyakhulu — the ANC's provincial task team co-ordinator — and 15 others, including former economic development department head Desmond Golding, event organisers Ceaser Mkhize, Mabheleni Ntuli, Basil Ninela and his wife Brenda, Nothando Zungu, Ntokozo Ndlovu and Njabulo Mkhize — faced fraud, money-laundering and corruption charges relating to the festival.
The state alleged the service providers were irregularly paid and the politicians received kickbacks.
In May 2023, Chetty, in an application at the end of the state's case, effectively acquitted the accused without them having to put up a defence. This, he said, was because there was not a shred of evidence against them.
In a 100-page ruling, which took three hours to read, Chetty went through each charge against each accused, noting the paucity of evidence against them, that in some instances the allegations were a 'stretch too far', and that a 'sniff of suspicion' was not enough in a criminal trial.
In terms of law, the state can only seek to appeal against what it considers to be a misdirection by the trial court on questions of law, not questions of fact.
In considering the application for leave to appeal to the SCA Chetty had ruled even if his judgment revealed he might have been mistaken in his assessment of the evidence the state could not appeal against this.
He was not convinced there were reasonable prospects the SCA would find he had committed a mistake in law and it would lead to the accused in the matter being convicted.
Mabuyakhulu, who was economic development and tourism MEC at the time, was charged with taking a bribe of R300,000 in return for the award of the contract to what became a joint venture.
Chetty's ruling came after their lawyers applied for their discharge, in terms of section 174 of the Criminal Procedure Act, without having to put up a defence.
This is done at the discretion of the judge at the close of the state's case in circumstances where the state has failed to prove its case and cannot secure a conviction without the accused having to testify and possibly incriminate themselves.
On Friday, Natasha Ramkisson-Kara, KwaZulu-Natal NPA spokesperson said: 'The NPA welcomes the opportunity to argue its case before the SCA that the honourable judge Mahendra Chetty erred in law in discharging the accused, that there are reasonable prospects of success on appeal, and that there are compelling reasons for the appeal to be heard by the SCA. Prosecutors will continue to vigorously challenge any decision considered to be wrong in law using available legal remedies.'
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