The direct term of imprisonment meted out to former African National Congress chief whip Toni Yengeni seems, in his personal view, to be harsh, but he cannot second-guess the discretion of the trial magistrate, says former Director of Public Prosecutions Bulelani Ngcuka.

He made this statement in an affidavit filed at the Pretoria High Court, in which he disputed claims by Yengeni that he had struck a deal with Ngcuka which would keep him out of jail.

Yengeni was sentenced on March 19 2003 to a four-year prison sentence on a charge of fraud. In appealing against the sentence, Yengeni claimed Ngcuka reneged on a deal in terms of which he would plead guilty to a lesser charge of fraud and in turn receive a fine of not more than R5 000.

"I deny that I agreed with the applicant (Yengeni) that he would plead guilty to the charge of fraud on the basis that the magistrate would be obliged to impose a fine of not more than R5 000.

"I could not have concluded such an agreement, for the second respondent (the trial magistrate) was an independent judicial officer not subject to the control and direction of the National Prosecuting Authority," he said.

By law, the magistrate was entitled and required to exercise his own independent discretion with regard to the sentencing of Yengeni, he said.

Ngcuka said former Justice Minister Penuell Maduna called him to a meeting at his home in January 2003 and said the meeting was requested by Yengeni. "I emphasise that I did not request the meeting."

Ngcuka stated that Yengeni said he wanted to enter into a plea-bargain and wanted to plead guilty to a lesser offence and receive a non-custodial sentence, preferably a fine.

"I indicated that the National Prosecuting Authority would be prepared to abandon the main charge of corruption and accept a plea of guilty on a lesser charge of fraud.

"I also informed him that if he would plead guilty to a charge of fraud, the State would not recommend a sentence of direct imprisonment. Instead consideration could be given of a substantial fine coupled with a suspended sentence."

Ngcuka said he made it clear to Yengeni that sentencing lay purely within the discretion of the magistrate, who would not be bound to accept the State's recommendation.

The meeting was concluded on the basis that he would communicate his discussion to the prosecutors handling the case – Jan Henning and Gerda Ferreira.

The two were asked to negotiate with Yengeni's legal representatives regarding an agreement on a plea of guilty which Yengeni undertook to tender.

"I made it clear to Henning and Ferreira that they should not press for a custodial sentence, but instead request a substantial fine coupled with a suspended sentence."

Ngcuka said Yengeni and his counsel were aware that neither he nor the prosecutors had the authority to usurp the functions and duties of the magistrate to impose a sentence he considered appropriate.

Ngcuka said after Yengeni was convicted of fraud, the prosecutors endeavoured to reach an agreement with the defence on a joint proposal to the magistrate regarding sentence. They could, however, not agree on the proposal and the prosecutors agreed to leave sentence in the hands of the magistrate.

"I undertook to assist the applicant, but within the confines of the law. I also deny that a binding agreement was reached after the discussions between myself, Yengeni and Maduna," Ngcuka said. He added that Yengeni was in any event not compelled to plead guilty.

Ngcuka also labelled several claims made against him by Yengeni in a second affidavit filed, as "tantamount to libel and malicious".

Ngcuka said an application to strike out these claims would be made on his behalf during Yengeni's appeal hearing on October 3. The allegations to which Ngcuka took offence included that he abused his office while still head of the NPA and that the spy claims against him were already on the cards since the early 80s.

With acknowledgements to Zelda Venter and the Pretoria News.