As former ANC chief whip Tony Yengeni's bid to have his four-year jail sentence set aside failed, so former prosecutions head Bulelani Ngcuka and former justice minister Penuell Maduna came in for criticism by the court.

Yengeni was convicted of defrauding parliament by failing to disclose a massive discount on a 4x4 Mercedes Benz and lied about this for almost two years.

Initially charged with corruption and fraud, Yengeni was convicted in 2003 of an alternative count of fraud following plea negotiations with the state. He was sentenced to four years in prison.

In his appeal judgment, heard this week at the Palace of Justice in Pretoria, judges Eberhard Bertelsmann and Ferdi Preller questioned the wisdom of a meeting held between Yengeni, Maduna and then national director of public prosecutions Ngcuka at Maduna's home in January 2003.

Yengeni claimed that the three met and during their discussions Ngcuka told him he would guarantee a sentence of no more than a R5 000 fine in exchange for Yengeni pleading guilty to the "watered-down" charge of fraud rather than the main charge of corruption. But this was disputed.

"It was unwise for [Yengeni] to seek the aid of the minister, because the mere fact of doing so might create the impression that he was seeking the support of a politically powerful ally to influence the exercise of [Ngcuka's] discretion," the Bertelsmann said.

"By the same token, it was unwise for the minister to participate in these discussions at all, precisely because it might create the perception that he was exerting improper political pressure on [Ngcuka]."

The judges rejected Yengeni's claim regarding the R5 000 fine, describing it as bearing "every hallmark of a desperate clutching at straws to escape the consequences of [his] actions rather than the ring of truth".

Yengeni had had eight opportunities in which to bring up the apparent bargain he claimed was struck. He did not object immediately when sentence was passed, but instead waited two years to raise the issue.

"The only reasonable conclusion is that such agreement was never entered into," Bertelsmann said.

He added that if the deal had been struck, it could not have been honoured as it was in direct conflict with the constitution, which guaranteed the independence of the judiciary.

Bertelsmann said it had been intuitively ill-advised for Ngcuka to have participated in a discussion with Maduna and Yengeni.

"The independence of the office that he held, and the fearless and unfettered exercise of the extensive powers that this office confers, are incompatible with any hint or suggestion that he might have lent an ear to politicians who might wish to advance the best interests of a crony rather than the search for the truth and the proper functioning of the criminal and penal process.

"Unfortunately, the terms of the deal that was admittedly struck at this occasion do little to allay the perception that they were dictated by considerations other than the determination of an appropriate sentence for the crime the appellant would plead guilty to."

Bertelsmann said Yengeni's crime was one of greed rather than need, he abused a position of trust, he was the initiator of the dishonest deal and he "continued to weave his web of deceit in the face of mounting public disquiet" for almost two years.

He had in fact taken out newspaper adverts to argue against the statements of his detractors and the media. Ngcuka should have been more watchful that his own position was not compromised in the eyes of the public.

"His agreement to seek a non-custodial sentence was thus unfortunate."

The judges upheld the four-year prison sentence and conviction. In terms of the law, Yengeni will be required to spend one-sixth of the sentence, or eight months, behind bars before he can be considered for parole.

The judges also dismissed with costs Yengeni's application for a review of his trial on the basis of the alleged deal with Ngcuka, and his appeal against conviction and sentence.

Yengeni's attorney, Marius du Toit, said his client had given instructions to appeal against the finding at a higher level. Yengeni, who is out on bail, was given 14 days to file his appeal or report to prison.

With acknowledgements to Gill Gifford and The Sunday Independent.