Mike Mabuyakhulu former MEC for Economic Development and Tourism outside Durban high court after he was acquitted from 2017 cases of fraud and corruption. Picture: Bongani Mbatha: African News Agency /ANA
AN ATTEMPT by the state to challenge a previous court decision that discharged the fraud, money-laundering and corruption charges against 16 accused in the North Sea Jazz Festival matter, including a prominent KwaZulu-Natal politician, failed earlier this month.
The 2012 version of the music festival did not materialise, but the provincial department of economic development, tourism and environmental affairs paid R28 million into the bank account of Soft Skills Communications 100 CC, the company tasked with staging the event.
The company and its owner, Caesar Walter Mkhize, other business owners and their service providing companies, and former KwaZulu-Natal MEC for Economic Development and Tourism, Mike Mabuyakulu, were among the accused.
Desmond Khalid Golding, who served as the head of department during Mabuyakhulu’s MEC tenure, authorised the payment despite knowing the festival was not going ahead, was an issue the NPA challenged.
Golding was listed as the first respondent.
The state claimed that once Soft Skills received the department’s payout, the funds were directed to the various service providers, listed as respondents, with “haste”.
The State claimed that Mabuyakhulu received a R300 000 kickback from a service providers in question, his said he was unaware how the money was sourced, but was a loan he needed to pay the SARS, and provided the SARS’ letter of demand and bank statements as proof.
While Judge Mahendra Chetty, who handled the matter at the Durban High Court, condoned the NPA’s lateness (5 months later) in challenging his acquittal ruling of May 2023, he dismissed their leave to appeal application on September 6.
In his May 2023 ruling, Judge Chetty found the NPA failed to provide compelling evidence for the accused to make a defence.
Therefore, when the defendants brought a Section 174 application according to the Criminal Procedure Act, to have the charges against them discharged, after the State closed its case, it was granted.
“I’m not convinced that there are reasonable prospects that the Supreme Court of Appeal will find that a mistake of law has been committed, and that there is also a reasonable prospect that this would lead to the respondents being convicted .
“The State’s case fails to meet the threshold,” said Judge Chetty.
The NPA indicated there were seven questions of law that the Supreme Court of Appeal would have to consider, stemming from Chetty’s trial judgement, but that was eventually reduced to two aspects.
They questioned whether the trial court erred in discharging the accused in terms of S174, against the evidence that was presented.
And, whether it was appropriate for the court to rely on the accused’s plea statements in deciding whether the State failed to provide prima facie evidence.
After lodging their application, the NPA filed a supplementary reservation.
The respondents were opposed to the NPA’s application and replied accordingly.
Golding’s legal team described the NPA’s supplementary reservation as an attempt to “plug” deficiencies in their case after reviewing the respondents' replies.
An issue raised by the NPA, which Chetty dealt with in the latest judgement, was that Golding authorised payment in November 2012 knowing that the concert would not proceed because the required licence agreement was not secured.
And that the respondents who received money at a “swift” rate thereafter ought to have known the payouts were from the proceeds of a crime, therefore, they had a case to answer.
Chetty said the NPA claimed that he overlooked this factor during the trial.
He pointed out that a State witness testimony contradicted the NPA’s position that the R28m payout was “unlawful”, as it was made to Soft Skills in anticipation that the licence issue would be resolved.
“In my view this issue constitutes a factual enquiry rather than a point of law and that the Counsel for Golding and Soft Skills argued that none of the charges against the respondents included an obligation to disclose such information as a requisite for conviction.”
Chetty indicated that there was no obligation on the court to draw conclusions of “fill in the gaps” where the State had not led evidence of witnesses.
Regarding the haste in which monies were paid to service providers, Chetty said the State’s witness said that it was customary practice in the arts industry for payments to be paid upfront to secure performers.
He noted that the department’s legal team scrutinised the contract in question, indicated that the entity’s rights were protected and that Golding insisted all procedures be vetted before payments were made.
Chetty raised that three state witnesses said, in their opinion, “no irregular expenditure” was attributable to Golding, that he also approached the chief director of budget at the Treasury before the payment was authorised and, after payment, he ensured that attempts to satisfy the licence requirement continued.
“In light of direct evidence, I am unable to ascertain how I could arrive at a conclusion different from what the witness testified.
“The state has a right of appeal only against mistakes of law, not mistakes of fact.”
Chetty said the State was unable to effectively support their argument that plea statements of the accused had no evidential value.
KZN’s director of public prosecutions, advocate Elaine Harrison said: “We are in consultation with our counsel, and we and considering our options.”