Yengeni's Merc ‘Not a Gift'
Pretoria - Former African National Congress chief whip Tony Yengeni did not receive a near 50% discount on a luxury Mercedes Benz 4X4 out of mere generosity, it was argued in the Pretoria High Court on Tuesday.
"(He did not receive) the benefit out of charity, and not because he was the deacon of a church," Jan Henning, SC, argued for the State.
The only conclusion was that the benefit was given with the aim that Yengeni should reciprocate, using his influence from his position at the time as chairperson of parliament's joint standing committee on defence, Henning told the court.
"If the applicants (Yengeni and his co-accused, businessman Michael Woerfel) have an innocent explanation, then it is easy to say so," he said.
Henning was disputing an argument by defence lawyers that in order for corruption charges against the two men to stand, the State had to prove Yengeni accepted a bribe with the intention of returning a favour in relation to his powers and duties.
The politician faces a charge of corruption for allegedly buying the car at a 47% discount in return for using his influence to "market" the products of DaimlerBenz Aerospace AG or DaimlerBenz Aerospace SA.
Woerfel, then head of DaimlerBenz's Pretoria office, is also charged with corruption for allegedly arranging the deal.
Daimler Benz Aerospace later became the European Aeronautic Defence and Space Company (Eads), of which Woerfel was the managing director. He was suspended from this post in July last year.
Eads has a 33% stake in Reutech Radar Systems, a Stellenbosch-based company that secured a R220m contract to provide radar technology for four corvettes that are part of the country's multi-billion rand arms acquisition programme.
Both men face a charge of fraud for alleged false representations made in the agreement of sale.
Earlier this month, the Pretoria Commercial Crimes Court dismissed the pair's objections to the charge sheet - which they claimed disclosed no offence.
They have now taken the matter on review to the high court, seeking a dismissal of the corruption charges and the alternative fraud charge.
Henning asked the court to dismiss the review application, saying the defence had shown no compelling reason for the matter to be considered while the trial was still pending.
The men had not been able to show that they would suffer a grave injustice if the trial was to proceed.
He conceded the State could claim what specific act Yengeni would have committed in return for the alleged benefit, but said this was common in corruption cases. As corruption was a notoriously difficult crime to detect, the State often had to rely on circumstantial evidence.
"It is unthinkable that the legislature would have intended corrupt persons to escape liability only because the State was unable to prove exactly what act was committed or intended to be committed," Henning argued.
He said the facts of the case led the State to the only reasonable inference - that there was a corrupt intent.
In the morning, presiding judge Bernard Ngoepe described as "startling" an argument on behalf of Yengeni that parliamentary privilege shielded him from criminal prosecution on the alternative fraud charge.
Hilton Epstein, SC, argued for Yengeni that he could not be held criminally liable for failing to disclose the alleged benefit to parliament. In any event, disclosures made to a confidential register of members' interests were protected by parliamentary privilege, he told the court.
The register was in two parts - one for public disclosures of benefits received, and a confidential part listing the value of such benefits.
Ngoepe asked whether this meant that one could make false claims in the register and not be prosecuted. "I can't think of a more preposterous idea than that," he told Epstein.
Henning said the State sought to hold Yengeni liable for failing to disclose the benefit in the public part of the register.
"If it was such an innocent gift, why has (he) not disclose it?" he asked.
Lawyers for the two men argued it was not an offence to give someone a benefit merely because of the office he held.
Since the charge sheet did not disclose what Yengeni is alleged to have done in return, they could not prepare a proper defence, the advocates contended.
They claimed it would be a grave injustice if their clients were made to stand trial on the existing charges.
Ngoepe reserved his judgment until noon on Wednesday.
Should he dismiss the review application, the trial could get underway in the Specialised Commercial Crimes Court by Thursday.
With acknowledgements to Sapa and www.news24.co.za