S v On Point Engineering (Pty) Ltd, Lesiba Gwangwa, Gwama Properties, Julius Malema and Kagiso Dichebe

6 August 2015

POLOKWANE - The NPA notes the decision of the Polokwane High Court to strike the matter off the roll on 4 August 2015. The matter was struck off the roll in terms of Section 342A(3)(c) of the Criminal Procedure Act 51 of 1977. The relevant subsection empowers the Court to strike a matter off the roll in circumstances where an accused has not pleaded to the charge(s) and where the Court believes that there has been unreasonable delay in finalising the matter. In this regard, the delay was not attributable to the State.

The Prosecution Team, led by Advocate Andrew Laka SC, of the Pretoria Bar, prepared thoroughly for the trial and were ready to proceed on 3 August 2015. The Prosecution had consulted extensively with witnesses who were ready and available.

In order to understand the circumstances that led to the matter being struck off the Court roll it is necessary to outline the history of the matter briefly.

The accused, with the exception of accused 4, Mr Julius Sello Malema, first appeared in Court on 25 September 2012, with accused 4 appearing the very next day. Their matter was thereafter adjourned to 30 November 2012 for the Prosecution to disclose the contents of the police investigation docket and the charge sheet.

On 30 November 2012 the matter was adjourned to 23 April 2013 so as to afford the accused an opportunity to consult with their respective legal representatives. The matter was thereafter adjourned to 27 July 2013 in order to obtain a High Court date, which resulted in the matter being set down for trial from 18 to 29 November 2013.

Three (3) days prior to the commencement of the trial, Mr Malema, through his lawyers, submitted representations to the then National Director of Public Prosecutions, Mr Mxolisi Nxasana, for the charges to be withdrawn against him.  On 11 August 2014, Mr Nxasana informed Mr Malema that his representations were unsuccessful and that he must stand trial as per the charges listed in the indictment.

The matter had subsequent thereto been postponed for trial from 30 September to 31 October 2014. On 30 September 2014 the matter could not proceed due to the unavailability of accused 5’s legal representative. The matter was consequently adjourned for trial to the period of 3 August to 10 September 2015. All the accused confirmed their readiness for trial for the latter date.

On 29 July 2015, three (3) court days before the trial date, the National Director of Public Prosecutions, Adv Shaun Abrahams, received representations from the legal teams representing accused 1 – 4, namely, On Point Engineering (Pty) Ltd, Mr Lesiba Cuthbert Gwangwa, Gwama Properties and Mr Malema to consider dropping all the charges against them.

During the afternoon of 2 August 2015, the National Director, after applying his mind, informed the legal representatives of the aforementioned accused that their representations were unsuccessful and that their trial must proceed as scheduled. 

Around 22h00, late at night, on the 2 August 2015 the Prosecution Team were advised that accused 5, Mr Kagiso Dichebe, has been hospitalised due to a stress related medical condition and that he would as a result be unable to attend his trial. On 3 August 2015 a medical certificate was tendered on his behalf which indicated his medical unfitness to stand trial until 23 August 2015.

The legal representatives of Accused 4, Mr Malema requested that Mr Dichebe’s matter be separated from that of the other accused and that the trial continues. The Prosecution team could not accede to this request as it would have been gravely prejudicial to the States case, particularly, in relation to the Racketeering charges. A decision to separate accused 5’s matter from that of his co-accused would not have been in the interests of the proper administration of justice, given the nature of the charges against all the accused.

Considerations were also given to proceeding with the matter in the absence of accused 5 in terms of section 159(2)(b) of the Criminal Procedure Act. This could not be pursued as the trial had not commenced as none of the accused had pleaded to the charges listed in the indictment. This too, would not have been in the interests of the proper administration of justice given the nature of the charges.

The NPA will request the Investigating Officer to monitor the medical condition of accused 5 and will re-evaluate the evidence before making a decision on the matter.

The NPA also deems it prudent to address the Cape Times’ article, “Malema wants farm after fraud case struck off roll”. The NPA obtained an order forfeiting the farm to the State on 18 March 2013 in terms of section 48 of the Prevention of Organised Crime Act, 121 of 1998.

This chapter of POCA operates independently of a possible prosecution. It provides that the state can forfeit any property if can prove that the property is actually the proceeds of crime.

All the parties with an interest in the farm were given ample notice of the application by the Asset Forfeiture Unit’s (AFU), and all of them elected not to oppose the application. They were Mr Gwangwa, his company Gwama Properties and Mr Malema who was alleged to be the real owner.

The farm has since been publicly auctioned and the proceeds thereof paid into the Criminal Assets Recovery Account (CARA).

Statement issued by the National Prosecuting Authority, August 6 2015