Johann Kriegler: This is Where Hlophe Erred in Bongo’s Acquittal

14 May 2021

Earlier this year, Freedom Under Law (FUL) took the unusual step of publicly criticising Judge John Hlophe’s dismissal of the charge of corruption against former minister Bongani Bongo. FUL described the judge’s conduct as yet another act of gross misconduct making him unfit him for judicial office and undertook to back up its comments with an analysis. This we proceed to do.

The case:

It was a straightforward case, well within the competence of any junior judicial officer. Applications in terms of section 174 of the Criminal Procedure Act and its predecessors have been a daily feature of our criminal courts for many years.

The law is clear and simple: if at the close of the prosecution case there is no evidence on which a careful judge could convict, the accused is entitled to be discharged. If there is evidence that is so bad as to be virtually worthless, a discharge in terms of section 174 should be ordered, but generally the judge does not evaluate credibility at that stage.

While the test is simple, its application is not always that simple and requires judicious examination of the facts of the particular case. While Judge Hlophe articulated the basic principles accurately enough – indeed in unnecessary detail – his evaluation of the facts was gravely defective. Examination of the judgment demonstrates that he distorted what was clear and drew conclusions that are clearly distorted.

The issue:

It was a simple case. The prosecution evidence on virtually all the relevant facts was undisputed.

There was one central issue: what was said in a conversation on 10 October 2017 in the office of Nthuthuzelo John Vanara, between him and Bongani Bongo. At the time Vanara was the evidence leader for a parliamentary committee inquiring into the affairs of Eskom and Bongo was a member of the National Assembly. The prosecution case was that Bongo asked Vanara to fake illness to obstruct the inquiry, in consideration for which Vanara could name his price which “the Eskom people” would pay and Bongo would deliver.

In his plea, Bongo agreed that the two of them met as alleged, but claimed that they met as fellow lawyers to discuss a question of law. At the time, the two of them were alone in Vanara’s office and so the case against Bongo would have turned on deciding which of them was telling the truth. By cutting short the case in terms of section 174, however, Judge Hlophe avoided having to conduct such an exercise. In effect, he found, though never actually saying so, that Vanara’s evidence was so bad as to be worthless and that he did not have to consider Bongo’s version.

The evidence:

The sequence of events starts on Wednesday 4 October 2017 when Vanara scheduled a meeting in Johannesburg for the following day with Zethembe Khoza, acting chair of Eskom.

Curiously, he then received three phone calls, one late in the evening, from Bongo, who was eager to meet him. Vanara’s testimony that the calls were related to his meeting with Khoza was challenged in cross-examination, but not controverted by any other testimony.

On the contrary, Vanara’s colleague who was with him during the evening call, testified that Vanara had told him at the time that it was Bongo who had called and that the call was about the Eskom enquiry.

These repeated and urgent calls (confirmed by police evidence) are consistent with Vanara’s evidence of the later offer of a bribe on Khoza’s behalf. On Bongo’s version, they are very odd indeed. If the judge gave any thought to this circumstance, he failed to record it in his judgment.

On Monday 9 October 2017 Bongo phoned again and they finally met the next morning. In his evidence, Vanara gave a detailed report of the disputed conversation. The key elements were these:

He was asked to assist the Eskom “people”;

Puzzled, he asked how he could assist;

Whereupon he was told: by shamming illness;

Thus delaying the conduct of the enquiry;

He was then asked to indicate how he would help to stop the enquiry;

And to name his price;

Which the Eskom “people” would pay to Mr Bongo; and

And which Mr Bongo would then pay over to Mr Vanara

Vanara testified that he turned down the offer firmly and asked Bongo to leave. (On any fair reading that evidence is clear but, as will be shown later, the judge somehow contrived to find fault with it on various spurious grounds). Vanara then WhatsApped one of his superiors to report the corrupt offer and that same afternoon went to Stellenbosch to make his report in person during a break in a workshop that they were attending.

Three of Vanara’s superiors confirmed in evidence that Vanara reported the offer of a bribe by Bongo to them that same day. Vanara’s formal written report of the incident was submitted about a fortnight later, Bongo having in the interim been appointed Minister of State Security. Some time in November that year the matter was reported to the police and the case eventually made its way to the Western Cape High Court, where Judge President Hlophe allocated it to himself.

The probabilities:

Vanara’s evidence was supported in material respects by the testimony of his colleagues and the overwhelming probabilities.

The first thing an objective adjudicator would ask is: What are the probabilities? Which of the two conflicting versions is more likely? Is it likely that Vanara would falsely impugn the honour of an important public figure? Why would he risk his own reputation and career by inventing a false tale and sending it up the line of authority in the parliamentary secretariat? Why would his colleagues bear him out? What could his compelling motive be?

There is no history of personal animosity between Bongo and Vanara.

A motive advanced at one stage by Bongo blew up in his face. Believing that Vanara’s complaint had first been raised on the day his statement was lodged (26 October 2017), Bongo suggested that the Vanara version was invented only once he (Bongo) had become a Cabinet minister on 17 October 2017. When it transpired that Vanara had relayed his version to his colleagues at the very earliest opportunity, on the day of the meeting (10 October), this line of attack was doomed.

We suggest that no competent judicial officer bringing an unbiased mind to bear on the undisputed facts could possibly say there is no case for Bongo to meet.

There is no hint in the judgment that Judge Hlophe, a Cambridge graduate, the senior High Court judge in the country with close on 30 years on the Bench, is incompetent. He could not possibly have overlooked the major probabilities in the case and on that basis alone his decision to discharge Bongo at the close of the prosecution case was demonstrably a travesty.

Other manifestations of bias:

Judge Hlophe’s perverted handling of the supporting evidence of the three colleagues to whom Vanara made the contemporaneous report is the second glaring feature of the case. Self-evidently this evidence is highly significant.

Any third-year law student should know that contemporaneous evidence of a report of the commission of a crime, known to lawyers as “raising the hue and cry”, is always important and often conclusive where one is dealing with a single-witness case.

While it is not direct proof of the commission of the offence, it is an important pointer to the truth.

The obvious question that the judge should have asked was: What must have happened to cause Vanara to WhatsApp his colleague and then rush to Stellenbosch to report a bribe? Why would he do this if he and Bongo had merely discussed a law point?

Nowhere in his judgment, however, does Judge Hlophe give any indication that he is aware of the importance of the very fact that Vanara raised the hue and cry; nowhere does he acknowledge that that it in itself constitutes weighty support for Vanara’s evidence.

On the contrary, he finds (in paragraph 52) that “the evidence of other state witnesses clearly does not corroborate that of Mr Vanara in material respects” and (in paragraph 42) “Mr Vanara’s testimony is contradicted by the testimony of the other witnesses and places his credibility as a single witness in question”.

This is simply not true.

The judge arrived at this perverse conclusion by ignoring the central fact that a report of a bribe was made, that it was made there and then, in considerable detail, to Vanara’s superiors, and as a matter of urgency.

Instead the judge nit-picked to find inconsistencies in the witnesses’ respective recollections of an oral communication more than three years earlier. There is no actual contradiction between the substance of Vanara’s evidence as to what happened between him and Bongo and what his colleagues remembered was reported to them.

But this is not the most egregious perversion of justice evident from Judge Hlophe’s handling of this important case. That distinction, we believe, should be accorded the use to which the judge put the hue and cry evidence. By a feat of logical gymnastics he turns it on its head.

Echoing a manifestly spurious line of reasoning advanced by Bongo’s counsel, Judge Hlophe rules that this evidence supporting the truth of Vanara’s evidence actually contradicts it. This he manages to do by arguing (incorrectly as it happens, but that is irrelevant) that Vanara committed an offence by not reporting the corrupt offer to the SAPS/Hawks. Vanara, and incidentally his colleagues, testified that they did not know that they were obliged to report the matter to the police.

Instead they escalated the matter within the parliamentary system.

Ignoring the evidence that Vanara and his colleagues did not know they were obliged to report the matter to the police, the judge reasoned that it leads him to doubt that a bribe could have been offered.

This is what the judge said (see paragraphs 26 and 27): 

“He did not report the commission of corruption to SAPS as required in terms of section 34(1) of the Act. His conduct is not consistent with that of a lawyer with knowledge of criminal law. The conclusion is inescapable: if Mr Vanara believed that Mr Bongo is guilty of an offence of corruption in terms of the Act, he (Mr Vanara) would have reported same to the Hawks/SAPS as required by section 34(1) of the Act. Why would he, Mr Vanara, choose to commit an offence under section 34(2) of the Act by not reporting the crime to Hawks/SAPS. Thus, his failure to report the incident of 10 October 2017 to the Hawks/SAPS simply does not make sense.”

The reasoning is so manifestly fallacious that it is difficult to engage with it. Suffice it to say, the judge should have stopped counsel in his tracks and pointed out the obvious illogic. That he entertained and adopted it manifests a settled determination to support a contrived conclusion.

Though these features conclusively demonstrate that Judge Hlophe’s judgment was designed to lend an air of legitimacy to the wrongful dismissal of an important case involving corruption in high places, there are further defects in the judgment.

Though Bongo had not given evidence, the judge quite improperly took into account what he had said in an affidavit submitted to the parliamentary ethics committee – and actually notes its consistency with the plea. That was not evidence before the court and could not lawfully be referred to in this manner. Judge Hlophe must have known that this was improper.

Conversely, the judge (in paragraph 45) engaged in speculation about what Bongo had said to the investigating officer, observing that, “It is not without significance, in my view, that Lieutenant-Colonel Mokhoema did not investigate the accused [sic] defence” and concluding that it “is inescapable that the investigating officer did not believe that Mr Bongo had committed any crime”. It is inconceivable that a senior judge can contend that what he assumes to have been the investigating officer’s belief is relevant (“not without significance”) in deciding a section 174 application.

The fact that, following Vanara’s confidential arrangement to meet Khoza in Johannesburg on Thursday 5 October, Bongo phoned Mr Vanara repeatedly, even late in the evening, seeking to arrange a meeting about the Eskom enquiry is obviously important. It lends support to Vanara’s version that the following Tuesday Bongo made him the corrupt offer on behalf of “people” at Eskom. Bongo’s version, however, raises two salient questions: Was it a wild coincidence that his calls followed Vanara’s confidential arrangement to meet Khoza and, more importantly, what was so urgent about the law point he says he wanted to discuss that he even proposed meeting Vanara at Cape Town airport on his return? Judge Hlophe ignores these salient features. Instead, by a process of convoluted reasoning (in paragraph 25) he discovers “a huge anomaly”(amounting to a credibility finding against Vanara) in that he made a “decision to withhold” the information of the corrupt offer from the colleague who had been with him the previous week when Bongo phoned late at night. (At the same time, conversely, as we have seen, the judge drew no inference from the fact that Vanara did indeed immediately report the corrupt offer to three other colleagues.)

Adopting an argument advanced by defence counsel, Judge Hlophe (in paragraphs 23 and 24) had a “difficulty with Mr Vanara’s evidence”, reasoning that because Vanara, who was merely the evidence leader, had no power to stop the inquiry, “it then becomes difficult to accept a senseless and futile act of bribing someone to act beyond the scope of their power, as the truth”. The proposition is palpably insupportable: the very purpose of the offer was for Vanara unlawfully to frustrate the enquiry by shamming illness, i.e. by unlawfully attaining an objective he was unable to attain lawfully. That defence counsel feels it necessary to advance spurious submissions is no warrant for a judge to afford them credence.

In similar vein, the judge himself introduced a note of incredulity in the course of Vanara’s testimony and gave his intervention stature in the judgment (in paragraph 24). Whereas Vanara had testified that the offer entailed the “people” at Eskom paying the bribe to Bongo for transmission to Vanara, the judge sceptically questioned the absence of banking details – for all the world as if the judge has not heard that bribes can be and often are paid in cash. He also appears to query the absence of a fixed amount, whereas it is perfectly clear on Vanara’s evidence that he was invited to name his price but rejected the approach out of hand, so any discussion of details did not arise. Far from being unlikely, the evidence has the ring of truth about it and it is the judge’s scepticism that is questionable.

The judge also comments adversely (still in paragraph 24) that there was no evidence of a follow-up regarding the payment, no “arrangements to get the money to Mr Vanara. Furthermore, there were no follow-up meetings between Mr Vanara and Mr Bongo”. This is manifestly nonsensical. On Vanara’s evidence, he turned down the offer and asked Bongo to leave. One can surely not reject his version on the basis that there was no follow-up. Of course there would be no follow-up. Conversely, one would like to ask Bongo why he never followed up on his alleged legal discussion with Vanara. The judge’s reasoning on the point is preposterous and evidences a settled determination to come to a preconceived conclusion.

The judge, having referred at length to the case law defining the test to be applied in a section 174 application, proceeded (in paragraph 52, unquestioningly following defence counsel’s argument) to apply a significantly different – and clearly wrong – test: “It is my judgment that “[sic] Mr Vanara’s evidence is not credible in some material respects. He is a single witness. Therefore his evidence must be clear and satisfactory in all material respects.” That is the test to be applied at the end of a case involving a single uncorroborated witness. It is astounding that a judge of Judge Hloph’’s experience can make so elementary a mistake. It also underscores the one-sided manner with which he approached the evidence.

The same paragraph contains another fundamental and revealing misdirection by the judge. He says: “The evidence of other state witnesses clearly does not corroborate that of Mr Vanara in some material respects.” This is a fundamental misconception of the law. The absence of corroboration in some material respects is irrelevant. What one looks for is the presence of corroboration in some material respects – and on the judge’s own finding there is some corroboration. In any event, that test too is applied at the end of a case, not in a section 174 situation, where the threshold is very much lower. Clearly, on his own evaluation of the evidence, Judge Hlophe should never have discharged Bongo.

Another manifestation of Judge Hlophe’s fixed intention to find fault with Mr Vanara’s version relates to the question of whether Vanara knew that Bongo was an advocate. This could possibly be marginally relevant to Bongo’s defence that he and Vanara met as lawyers to discuss a legal issue, but on the substance of the case it was a trivial side-issue. Vanara said he did not know Bongo was an advocate, while some of his colleagues testified that they knew, although the Acting Secretary to Parliament, one of the people to whom Vanara had reported the crime on 10 October 2017, did not. Contrasting Vanara’s evidence that he was unaware of Bongo’s title with evidence that it was common knowledge in the corridors of Parliament, the judge (in paragraph 40) finds that “This flies in the face of Mr Vanara’s testimony”. This inappropriate hyperbole says more about the judge’s mindset than it does about the evidence.

Likewise the judge’s sideswipe at the leader of the opposition and original complainant in the case reveals more about the judge than about the merits of the case. Pointing out (in paragraph 46) that “According to the investigating officer Mr Steenhuisen said ‘Vanara said he was bribed'” and labelling this “factually incorrect”, the judge accepts a submission by Bongo’s counsel “that such incorrect information could only have come from Mr Vanara. This is yet another version of what allegedly transpired between Mr Vanara and Mr Bongo on 10 October 2017.” That is an astounding proposition. There is nothing to suggest any link between Vanara and Steenhuisen in respect of information that had long since been in the public domain. It is inconceivable that a judge can put forward so unwarranted an argument to bolster an attempt to discredit Vanara (and en passant Mr Steenhuisen). The suggestion of a political motive is irresponsible.

Finally, and conclusively in a section 174 case, the judge says (in paragraph 49) that he has already found that there is insufficient evidence to put Bongo on his defence, but this is wrong. Nowhere in the judgment does the judge conduct an overview of the evidence as a whole; nowhere does he identify – let alone evaluate – the respects in which he finds Vanara’s evidence to be contradicted. Notably, he does not examine the material respects in which Vanara’s evidence is corroborated. Had Judge Hlophe engaged with these essential aspects of an assessment under section 174, the fallacy of his reasoning would have been plain.

Professional considerations:

The very fact that Judge Hlophe presided was questionable. He does not ordinarily preside in criminal trials: this appears to be the first major criminal trial he has taken for himself in several years.

He is facing charges of gross misconduct which, if the Judicial Service Commission so decides, will come before the National Assembly for impeachment. For that reason alone he ought to have considered it unwise, if not wrong, for him to preside in a case involving a member of that chamber.

In any event, it brings the administration of justice into disrepute when a judge with serious charges hanging over his head presides in any high-profile case.

It was a significant and exemplary case, the first corruption prosecution of a senior member of the governing party.

It was vital that it be conducted with manifest objectivity and fairness.

Judge Hlophe is a competent and experienced judge from whom judgments of the highest quality can be expected. It is therefore a matter for comment and concern that in this case he manifestly failed.

Judge Johann Kriegler is Chairperson of the Board of Freedom Under Law.

This piece was first published in News 24 on 8 March 2021, available here.