SCA asked to dismiss state’s appeal on Nulane case amid questions about witness’s testimony

A state witness’s testimony in the R24.9 million Nulane Investments fraud, money laundering and corruption trial became the focus on Friday as the Supreme Court of Appeal (SCA) reserved its judgment on the state’s appeal.

The SCA heard a leave to appeal application by the National Prosecuting Authority (NPA), which is seeking to overturn a ruling that acquitted all the accused in the Nulane case.

Nulane fraud accused discharged

In April 2023, seven of the eight accused — including former Free State government officials Peter Thabethe and Seipati Dhlamini, along with Nulane Investments director and Gupta associate Iqbal Sharma — successfully applied to be discharged under Section 174 of the Criminal Procedure Act (CPA) in the Free State High Court in Bloemfontein.

High court acting judge Nompumelelo Gusha also found former head of the Free State department of agriculture and rural development Limakatso Moorosi not guilty and she was acquitted.

Gusha, in her judgment, criticised the state’s investigation and concluded that the testimony of the state’s sole witness, Shadrack Cezula — who had been the acting supply chain manager at the Free State department of agriculture — was “evasive”.

She, therefore, concluded that the state had failed to prove its case against the accused before the court.

The outcome was appealed by the NPA, which is seeking a retrial.

State appeals Nulane trial judgment in SCA

During Friday’s proceedings, advocate Johann Nel, counsel for Moorosi, argued that the state had failed to make a case.

“The application should, therefore, be dismissed,” he said.

Nel added that no error of law had been made by the high court.

Advocate Willem Johannes Edeling, representing Dhlamini, argued that “even if this court or any other court wanted to convict, it cannot because it is limited”.

However, SCA Judge Ashton Schippers questioned whether Gusha had made an error by refusing to grant Cezula immunity from prosecution under Section 204 of the CPA after the witness declined to admit that he was guilty of the same fraud he had testified about during the trial.

Gusha had found that Cezula was “hell-bent on distancing himself from committing the offence of fraud”.

Cezula’s testimony focused on the allegation that Dhlamini asked him to deviate from normal procurement procedures and appoint Nulane Investments as a service provider.

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He complied with the instruction, “albeit he was anxious“.

Schippers commented that he believed the judge’s handling of this matter led to the accused’s acquittal, as she effectively dismissed Cezula’s testimony.

“The judge below considered that Mr Cezula did not admit to the crime and she found he was mendacious and therefore she found that he was not entitled to an indemnity.

“That too, on the face of it, was a misapplication of the law because she misinterpreted and she misapplied Section 204,” Schippers said.

Edeling conceded that the section was “very clear” in stating that someone does not have to admit guilt.

SCA questions judge’s approach on state witness

Schippers maintained that Gusha’s refusal of indemnity was a “misapplication of Section 204 because Mr Cezula had a right to be heard”.

“If that is so, the case of the state is severed,” the judge said.

“Because that evidence is taken out of the equation, that in turn influences the application of Section 174, because the judge’s view is there is no evidence for [the accused] to go into the witness box.

“There’s not a prima facie case made out because Mr Cezula is a lying, mendacious witness. Does that not critically affect the decision to discharge?

“I can’t see it any other way, unless you can persuade me there is a different way of approaching the matter,” Schippers further told Edeling.

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Edeling argued that prima facie evidence was not enough to convict an accused.

“I think we should be careful,” the lawyer said. “Prima facie evidence is not the golden rule. It’s whether the court at that point in time expected [my client] to either come to the witness stand or convict,” he added.

Attorney for Sharma, Bronwynne Forbay, argued that the state’s application “suffers fundamental defects.”

“Whether or not the trial court erred in some regards to the factual findings, it is not for the court to rehash or revisit that finding,” Forbay said.

IDAC reacts

The NPA’s Investigating Directorate Against Corruption (IDAC) has since maintained that Gusha erred on several key legal questions.

“Today, the SCA bench cemented the correctness of their belief in the manner in which key legal issues were ventilated and questions asked,” IDAC spokesperson Henry Mamothame said in a statement.

“The state must ensure that justice is served and hopes that this appeal shows the people of the republic that state capture and corruption cannot go unpunished, and where this seems a likely scenario, it must follow the legal recourse available.

“We await the court’s judgment,” Mamothame concluded.

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