The Director of Public Prosecutions, Western Cape v Bongani Bongo

On 10 October 2017, the respondent, Bongani Bongo, allegedly offered gratification to Mr Mtuthuzeli John Vanara, the Senior Manager: Legal and Constitutional Services in the office of the Speaker of Parliament and evidence leader of the Parliamentary Portfolio Committee Inquiry into Eskom. The state alleged that the respondent offered Vanara money to either fake illness, take sick leave, or otherwise delay or stop the Inquiry. The respondent pleaded not guilty to charges of corruption under the Prevention and Combating of Corrupt Activities Act 12 of 2004 (PRECCA). After the state closed its case, the trial court (Hlophe JP) granted the respondent's discharge under section 174 of the Criminal Procedure Act 51 of 1977 (CPA), finding Vanara's testimony not credible and that there was insufficient evidence for conviction. The state applied to reserve questions of law under section 319 of the CPA, which the trial court refused. The state then petitioned the Supreme Court of Appeal for leave to appeal.

• What constitutes a 'question of law' for purposes of section 319 of the CPA?
• Whether the trial court correctly applied the elements of the crime of corruption when it found that no crime was committed because no specific arrangements for payment were made
• Whether the trial court properly relied on the respondent's previous statement to the Parliamentary Ethics Committee as a 'previous consistent statement' having probative value when the respondent did not testify
• Whether the trial court applied the correct test under section 174 of the CPA regarding discharge at the close of the state's case
• Whether a plea of autrefois acquit would apply if the matter were remitted for trial de novo

1. The state was granted leave to appeal against the refusal by the trial court to reserve questions of law. 2. The questions of law mentioned in the state's founding affidavit were referred to the Supreme Court of Appeal for consideration. 3. The third and sixth questions of law were determined in favour of the state. 4. The order of the trial court discharging the respondent under section 174 of the CPA was set aside and the matter was remitted for trial de novo before a differently constituted court.

The ratio decidendi (binding legal principles) established by this case are: (1) Under section 4(1)(b) of PRECCA, the crime of corruption is complete once an offer of gratification is made to a public officer to induce performance of a proscribed act. There is no requirement for agreement between the parties, no requirement for a specific amount to be offered, no requirement for arrangements for payment to be made, and no requirement for a quid pro quo to be paid or agreed upon. (2) Asking a public official to "name their price" to perform a proscribed act constitutes an offer of gratification under PRECCA. (3) A previous statement by an accused cannot be treated as a "previous consistent statement" with probative value when the accused does not testify at trial. Previous consistent statements have no probative value except where there is an allegation of recent fabrication. (4) When a trial court misunderstands or misapplies the legal elements of a crime, this constitutes a misdirection on a question of law (not merely a question of fact), which may be reserved under section 319 of the CPA. (5) Where questions of law are reserved and decided in favour of the state following a discharge under section 174, sections 322(4) and 324 of the CPA permit remittal for trial de novo before a different judicial officer without offending the principle against double jeopardy.

The Court made several obiter observations: (1) The Court noted that other questions of law raised by the state - particularly regarding the proper application of the cautionary rule for single witnesses at the section 174 stage and the drawing of adverse inferences from failure to call witnesses - raised "interesting legal questions" but were best left for decision on another occasion, as they were not necessary to determine the appeal. (2) The Court observed that the trial court's suggestion that a plea of autrefois acquit would be available if the matter were remitted was "patently wrong and ignores the explicit provisions of ss 322(4) and 324 of the CPA." (3) The Court noted the wide definition of "gratification" in section 1 of PRECCA, which purposely casts the net wide and includes money, donations, loans, avoidance of loss or liability, and any valuable consideration or benefit. (4) The Court implicitly criticized the trial court's handling of credibility at the section 174 stage, though this was not fully explored as it was unnecessary to the decision.

This case clarifies important principles of South African criminal law and procedure: (1) It reinforces that the crime of corruption under PRECCA is complete upon the offering of gratification to induce a proscribed act, regardless of whether specific arrangements for payment are made or whether the offer is accepted. No agreement or quid pro quo is required. (2) It confirms that "gratification" is purposely defined widely in PRECCA and includes asking someone to "name their price". (3) It clarifies that previous consistent statements have no probative value unless there is an allegation of recent fabrication, and cannot have probative value when the accused does not testify. (4) It demonstrates the proper approach to section 174 discharge applications and the limited role of credibility findings at that stage. (5) It clarifies the procedure for reserving questions of law under section 319 of the CPA and confirms that remittal for trial de novo under sections 322(4) and 324 does not offend the principle against double jeopardy or allow a plea of autrefois acquit. The case is particularly significant given the high public interest in combating corruption in South Africa.