ANC heavyweight Mike Mabuyakhulu acquitted in graft case

The corruption case relating to R28.5m paid by the KwaZulu-Natal provincial government to host what became a failed North Sea Jazz Festival in the province in 2012 has collapsed.

After hearing evidence from state witnesses over the past two years, Durban high court judge Mahendra Chetty granted a discharge to all 16 accused in the case, including former ANC heavyweight and MEC for economic development at the time, Mike Mabuyakhulu, declaring them not guilty.

Mabuyakhulu, who “stepped aside” according to ANC rules while he and his co-accused stood trial, was accused of taking a bribe of R300,000 in return for the award of the contract to what became a joint venture.

However, on Tuesday Chetty said at the end of the state’s case there was no evidence to support this allegation or the dozens of others contained in the charge sheet against him and his co-accused.

Chetty’s ruling came after lawyers acting for all applied for their discharge in terms of the Criminal Procedure Act without having to put up a defence.

This is done at the discretion of the judge at the close of the state’s case in circumstances where the state has failed to prove its case and cannot secure a conviction without the accused having to testify and possibly incriminate themselves.

In a 100-page ruling, which took three hours to read, Chetty went through each charge against each accused, noting the paucity of evidence against them that in some instances meant the allegations were a “stretch too far”, and that a “sniff of suspicion” was not enough in a criminal trial.

He noted the jazz festival project had been approved by a ministerial subcommittee and by the provincial cabinet, so it could not be said there had been unlawful expenditure and there were no indications of corruption at that level.

The evidence was that it had failed, ultimately, because of infighting between the service providers.

Of allegations the former director-general in the department, Desmond Khalid Golding, who was accused No 1 in the trial, took a “gratification” of R1m to facilitate the appointment of one of the contractors, Soft Skills, Chetty said there was no evidence of this at all.

While cash deposits had been made to a local attorney for a property, this could have been winnings from a local casino. 

Regarding R300,000 paid into Mabuyakhulu’s account, Chetty said the state had not produced evidence to gainsay his version that he believed the money had come from a friend who was assisting him to pay off a SA Revenue Service debt.

He also noted evidence that Mabuyakhulu had been the one to finally pull the plug on the project, and was the plaintiff in civil proceedings, which were still pending, to recover the R28.5m.

“In the final result, the state has not lived up to the promise set out in its opening address and in the indictment. The state’s case was plagued by not calling several key witnesses who I understood to be in the Netherlands,” he said. 

“When this matter commenced, almost two years ago in the midst of the Covid-19 pandemic, the court was advised steps would be taken to ensure these witnesses would testify. It was intimated they would do so by video link due to the dangers of travelling abroad.

“That obstacle was removed with the reinstatement of international travel. The court was made aware of no other reason the witnesses were not available.”

Chetty said of the witnesses who were available, the evidence given was limited to a rudimentary narration of the documents. The forensic investigators were not qualified as such and not much weight could be placed on their evidence.

“The leading of evidence of financial transactions is critical to the outcome of cases of corruption and money laundering. The state is obliged to join the dots. It is not for this court to do so or to speculate.”

To require the accused to be placed on their defence would be an infringement of their constitutional right to be presumed innocent and would not be in the interests of justice, he added.

Speaking to journalists afterwards, Mabuyakhulu said he had always maintained his innocence but wanted to let the legal process unfold.

“We have been patient,” he said. 

He said he had “stepped aside” because he did not want the ANC to be tainted and he had encouraged his supporters not to attend court because he wanted to “reduce any negative image” of the party.

Asked if he would consider taking civil action against the NPA for malicious prosecution, he said: “I welcome the fact that my name has been cleared. I will reflect on the way forward.”

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