Tony's Merc : No Favour Needed for Bribery
|Publication||Mail & Guardian|
One need not return any favours for accepting a bribe in order to be guilty of corruption, the trial of former African National Congress Chief Whip and businessman Michael Woerfel heard on Tuesday.
The defence was "clouding the issue" by arguing the pair should walk free unless it could be proved that Yengeni reciprocated after accepting a special car deal from Woerfel, Jan Henning, SC, contended for the State.
"A lot of dust has been kicked up," he said after defence advocates concluded their applications for the charges to be quashed in the Pretoria Special Commercial Crimes Court.
"It is in law immaterial whether any act was in fact committed or omitted (in return for a bribe). The real question here is: 'Did you receive a benefit, and if so, why?'."
Henning contended there was no need for the State to determine the exact nature of the favour promised in return for a bribe. Officials were often "bought" with a view to unspecified preferential treatment later on. One could be convicted of corruption even without the intention of acting on a bribe, or if you did not have the power to do so.
Yengeni is charged with corruption for allegedly buying a luxurious Mercedes-Benz 4X4 at a 47% discount in return for using his influence to "market" the products of DaimlerChrysler Aerospace AG.
There is an alternative charge of fraud for failing to disclose the benefit to Parliament.
Woerfel, then managing director of the European Aeronautic Defence and Space Company (Eads), is charged with corruption for arranging the car deal.
Both are charged with fraud in relation to alleged false representations made in the agreement of sale.
The State alleges that Woerfel sold the car to Yengeni for R182 563, nearly half the retail price of R349 950. Yengeni was then chairman of Parliament's joint standing committee on defence. He sold the Mercedes for R220 000 in November last year.
The State further alleges Yengeni received the vehicle with the intention to "use his power or exercise his influence to influence the arms acquisitions process" in favour of Eads's predecessor Daimler-Benz Aerospace AG or DaimlerChrysler Aerospace AG.
Eads -- a joint venture between DaimlerChrysler Aerospace and two European companies -- has a 33% stake in Reutech Radar Systems, a Stellenbosch company that secured a R220-million contract to provide radar technology for four corvettes, part of the country's multi-billion rand arms acquisition programme.
The two men on Tuesday asked the court to quash all the charges against them -- except for the one count of fraud against Woerfel.
They claimed the State could not show that Yengeni had used his influence in any way in the arms acquisition process in return for the discount --or that he intended to. This was crucial to achieving a conviction, the pair contended.
Michael Hellens, SC, for Woerfel, told the court the State was unable even to allege any wrongdoing, let alone prove it. It was not a crime to give somebody a benefit because of the office he holds, or for that person to accept, he said.
"They (the State) don't know what their case is."
Hellens added it was an accused person's constitutional right to know exactly what he was charged with.
"The State must allege a crime in detail, and they can't."
Hilton Epstein, SC, for Yengeni, argued the indictment did not contain sufficient particulars to sustain a corruption charge or a conviction.
"The State wants to prove something by inference but they don't even know what they want to prove."
He said the State had conceded Yengeni would not have been able to influence the arms acquisition process, and also could not prove that he had tried.
Henning said only one conclusion could be drawn from the circumstances of the case.
"Here we have the chairman of a constitutional committee... which oversees the SA National Defence Force and its armaments, and the representative of a company which was a bidder in this (arms procurement) process. Now the chairman of the committee receives a substantial gift or benefit.
"The only inference is that it was given with corrupt intent and that it was received with such intent."
The defence was in effect asking the prosecuting authority "to say to the South African public that if a senior politician receives an enormous discount on a car from a person who is a roleplayer in the arms acquisition programme, we should just turn our heads and decline to prosecute," Henning said. "That would defy all the rules of logic."
Should the court uphold the objections to the indictment, it could be referred back to the State for redrafting, or be thrown out.
Should the objections be dismissed, the trial will start. The men have not yet pleaded.
The hearing continues on Wednesday.
With acknowledgements to Sapa and Mail & Guardian Online.