Johannesburg – While the AfriForum Private Prosecution Unit says it is “pleased the National Prosecuting Authority (NPA) finally took a decision” in the matter against former sports minister, Fikile Mbalula, however, it disagrees with the outcome.
On Wednesday, the NPA announced that it had taken a decision not to prosecute Mbalula.
The NPA said: “This is in relation to the Public Protector’s report released on 19 December 2019, that the NPA should look into the allegation that Sedgars Sports funded the Mbalula family holiday to Dubai between December 2016 and January 2017, when he was the Minister of Sports Arts and Culture”.
The NPA said the referral from the Public Protector, was to investigate whether the trip was proceeds of money laundering, with the view to prosecute anyone who may have been involved in criminal activities.
A police docket was registered at Brooklyn Police Station, CAS 158/08/2019.
“After police investigations, guided by the prosecutors in the Pretoria SCCU office, and the DPP office, a decision to decline to prosecute anyone in this matter was taken, as there is no evidence supporting allegations of criminal activity,” said NPA Gauteng Spokesperson Lumka Mahanjana.
Reacting to the decision, AfriForum Spokesperson Barry Bateman on Thursday said: “The decision, however, appears to be irrational and wrong in law”.
Bateman added: “Nevertheless, this point would never have been reached without the constant pressure the unit has applied on the NPA to simply perform its duty”.
“The allegations against Mbalula are simple and uncomplicated.
“They entail that the Dockrat family, through linked companies Sedgars Sport and Reimon Uniforms, allegedly paid for the politicians holiday.”
Bateman said in a letter to the unit confirming the decision, Gauteng Director of Public Prosecutions Advocate Sibongile Mzinyathi provided two reasons for not pursuing the case against the former minister.
First, he says the gist of the evidence is that the money used to pay for the trip was a loan by a person in personal capacity to Mr. Mbalula. The loan of R300 000-00 was repaid in full with interest.
Secondly, Mzinyathi says: The investigation further looked into whether there was a quid pro quo between Mr. Mbalula and the persons linked to the two companies mentioned, namely Reiman Uniforms and Sedgars Sport, and such could not be found.
Bateman said the NPA appears to have uncritically accepted the version provided by the suspect that the money was not a gift.
He said this was contrary to the findings of the Public Protector, who found after having considered their submissions (Dockrat and Mbalula), I do not accept that the arrangement between them constituted a loan agreement. Had the transaction not been reported in the media, Mr. Mbalula would not have repaid the funds.
Bateman said while the unit also believes the payment was not a loan, the NPAs position does not provide an excuse to not prosecute Mbalula.
The definition of gratification in the Prevention and Combatting of Corrupt Activities Act is the following: any donation, gift, loan, fee, reward, valuable security, property or interest in property of any description, whether movable or immovable, or any other similar advantage.
Bateman said the second reason provided by the NPA “sadly, but unsurprisingly, further demonstrates the very poor understanding prosecutors have of the crime of corruption”.
He said it was established in S v Selebi in the Supreme Court of Appeal that there need not be any quid pro quo between the corruptor and corruptee for the requirements for corruption to be met.
Snyders J found: the appellant (Jackie Selebi) must have realised that (Glen) Agliottis generosity and the payments he received from him created a dynamic, whereby he, in his post as head of the nations police service, would be indebted to him and would have to remain willing to do him favours.
Bateman said put differently, in the present case, its easily argued that Mbalula must have realised that Dockrats generosity and the payments Mbalula received from Dockrat created a dynamic, whereby he, in his post as Sports Minister, would be indebted to him and would have to remain willing to do him favours.
It took nearly four years for the NPA to make this decision.
“Such delay invariably prejudiced the chances of a successful prosecution,” Bateman said.
“But this has not deterred the Private Prosecution Unit which remains convinced that Mbalula has a criminal case to answer to.
“The unit will now carefully consider its next step to ultimately ensure that justice is done.”
