Publication: Sapa Issued: Pretoria Date: 2005-11-11 Reporter: Mariette le Roux

Perceptions of Preferential Treatment Must be Rooted Out: Judges

 

Publication 

Sapa
BC-COURT-2ND-LD-YENGENI

Date

2005-11-11

Issued

Pretoria

Reporter

 Mariette le Roux

 

Perceptions of the National Prosecuting Authority (NPA) showing leniency toward corrupt politicians must be nipped in the bud, two Pretoria judges said on Friday.

A public belief that "the NPA was open to political deal-making and was inclined to grant preferential treatment to dishonest and corrupt politicians" would have grave consequences for the credibility of the legal system, they said.

"Any suggestion of favouritism toward politically well-connected criminals on the part of the Authority should therefore be rooted out immediately."

Judges Eberhard Bertelsmann and Ferdi Preller highlighted problems posed by public corruption in dismissing an appeal against the fraud conviction and four-year sentence of former African National Congress chief whip Tony Yengeni.

"To state that corruption and other crimes of dishonesty on the part of elected office bearers and officials in the public service have become one of the most serious threats to our country's well-being, is to state the obvious.

"Their incidence may well be characterised as a pandemic that needs to be recognised as such and requires concerted and drastic efforts to combat it."

They questioned the wisdom *1 of a meeting held between Yengeni, former Justice Minister Penuell Maduna and then prosecutions head Bulelani Ngcuka at Maduna's home in January 2003.

It was agreed there that the State would abandon the main corruption charge against Yengeni if he pleaded guilty to a lesser charge of fraud.

Ngcuka undertook that the prosecution would not seek a sentence of direct imprisonment.

Yengeni claimed he was promised a fine not exceeding R5 000, but this has been 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 judges said.

"By the same token, it was unwise *1 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)."

It was furthermore "indubitably ill-advised *1" for Ngcuka to be seen to participate in a discussion with the minister 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 *2.

"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."

Ngcuka must have been aware of the dim view taken by courts to government corruption, and should have appreciated that there were serious aggravating factors in Yengeni's case.

His crime was one of greed, 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.

Ngcuka should have been more watchful that his own position was not compromised in the eyes of the public, the judges said.

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

The State honoured its part of the deal, but the trial court gave Yengeni four years -- of which at least eight months had to be spent behind bars.

A harsher sentence would have been more appropriate, Bertelsmann and Preller said.

They also referred to non-custodial sentences imposed on MPs, after plea negotiations, found guilty of having abused travel benefits.

The fact that they were not sent to prison for more than 12 months allowed them to remain public representatives.

Plea bargaining was a useful feature of the criminal process, the judges said.

But, "the apparent pattern of agreed non-custodial sentences imposed upon dishonest politicians ... might create the public perception that the State appears to be comfortable *3 with the thought that Parliamentarians who have abused an office of trust are treated more leniently than other offenders.

"It would be more than unfortunate if such an impression were allowed to arise."

In the Yengeni case, as well as that of former ANC Women's League President Winnie Madikizela-Mandela, prosecutors said they were acting on instructions *3 in not seeking jail sentences for the accused, the judges said.

This suggested that their professional judgement was overridden by the instructions of their superiors.

The judges urged courts confronted with plea and sentence agreements to exercise vigilance and ensure appropriate retribution was exacted.

"Effective deterrence must feature, and must be seen to feature, in every such agreement."

With acknowledgements to Mariette le Roux and Sapa.


*1  Assenine.

*2  Al la other assenine conduct regarding the Alain Thetard deal.

*3  "There are those among us in the service of The State........"

A general comment: every single word of this article (reproduced from the judgment) could be highlighted as important.