Johannesburg - Hight Court Judge Anthony Millar is on Tuesday expected to deliver his judgment on the application by acting Mpumalanga Director of Public Prosecutions Matric Luphondo to declare his prosecution unlawful.
This, after Luphondo’s legal counsel, Danie Dorfling, notified the court yesterday that they would be bringing an application challenging the decision to prosecute Luphondo, as it was not personally signed by the Director of Public Prosecutions (DPP) as the policy directs.
Dorfling told the court that the only thing present was a letter from the DPP instructing the lower court’s prosecutor that the matter was to be transferred from the lower court to the High Court along with the indictment.
However, even that letter had not been signed by the DPP himself and was instead signed off by the chief clerk in his office.
Advocate Barry Roux, on behalf of the State, called advocate Sibongile Mzinyathi, the DPP for the Gauteng region, to the stand, who testified that he had a number of officials in his office who at times were delegated certain functions.
Mzinyathi said it was not irregular for decisions made by him to be signed off by the chief clerk, however, he stressed that the decision was made by him after thorough consultations with his team members about the investigations.
According to Mzinyathi, in relation to the Luphondo matter, he had frequent and regular discussions surrounding the progress of the case and even asked questions to that effect, hence, he was able to make the decision to prosecute.
This was, however, criticised by Dorfling, who repeatedly asked him to show where it was implicitly stated that a decision had been authorised.
Dorfling stressed that despite his (Mzinyathi’s) evidence, it was procedurally required, and according to the National Prosecuting Authority’s policy, the prosecution of certain categories of persons, including a member of the DPP or judges, had to be accompanied by an authorisation letter, which was not provided.
Lawrence Hodes added that there was a distinction between being aware of something as opposed to authorising it, which he stressed had not been done in this matter.
The legal team called for the charges to be dropped as they were not in accordance with what was required.
Luphondo and his co-accused, Kebone Masange, the head of the province’s Department of Human Settlements, are facing as many as 10 charges relating to their alleged attempt to bribe a prosecutor to drop a case of fraud and contraventions of the Immigration Act against Masange.
It is claimed that the pair, among others, offered the State prosecutor, Andrew Mphaga, tasked with prosecuting the matter, R28 000, along with a bottle of 18-year-old Glenfiddich whisky.
The money and the whisky were allegedly handed over to prosecutor Mphaga during an undercover operation.
The matter is expected to return to court on June 13 with a decision on the application and will proceed with the trial-within-a-trial dealing with the admissibility of evidence collected in Luphondo’s fraud case as a result of the sting operation.
The Star