2005-11-14,+Maduna,+Ngcuka+lashed+by+Yengeni+court,+S+Indy+and+Star

= Maduna, Ngcuka lashed by Yengeni court =

Sunday Independent, Johannesburg, November 13, 2005 By Gill Gifford

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.

From: http://www.sundayindependent.co.za/index.php?fSectionId=1042&fArticleId=2992429

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= **Judge blasts Maduna, Ngcuka over Yengeni** =

Saturday Star, Johannesburg, November 12, 2005 By MICHAEL SCHMIDT

The judge who upheld ANC national executive committee member Tony Yengeni's conviction and four-year sentence for fraud yesterday lashed out at former justice minister Penuell Maduna and former national director of public prosecutions Bulelani Ngcuka for having tried to "subjugate" the courts.

It was the latest bruising round in the lengthy arms deal scandal that will see axed deputy president Jacob Zuma in court again today.

Yengeni lied to Parliament and the South African public by not disclosing, then covering up, the fact that he had received a discount Mercedes-Benz ML 320 from arms firm Daimler-Benz Aerospace AG while the company was bidding for defence contracts, and while Yengeni chaired Parliament's joint standing committee on defence

Judge Eberhardt Bertelsmann, flanked by Judge Ferdi Preller, was clearly not in the mood to hand out Get Out of Jail Free cards yesterday when he lambasted Maduna, Ngcuka and Yengeni for having struck a deal at a private meeting in January 2003 at Maduna's Johannesburg home that the state would not press for Yengeni to be jailed.

Bertelsmann said that the statute establishing the National Prosecuting Authority was deliberately designed to protect the national director of public prosecutions "from the powerful, the rich and the peddlers of political influence".

But the fact that Ngcuka attended such a meeting was "improper" because it created the impression that he was aiding the interests of "a political crony"

Maduna's presence at the meeting "could have created the impression that he was exerting an improper influence on the national director of public prosecutions", while Yengeni's presence could be seen to indicate he was "seeking the support of a politically powerful ally to influence the exercise of [Ngcuka's] discretion".

Maduna and Ngcuka had had not responded to e-mailed questions on Bertelsmann's attack by the time of going to press.

They both resigned from public life under clouds of fallout from the troubled arms deal to go into BEE. Maduna now heads up Tshwarisano LFB Investment (Pty) Ltd, Sasol's BEE enterprise, while Ngcuka heads up Chestnut Hill, an Old Mutual BEE initiative.

In September, Maduna's Miganu Investments and Ngcuka's Amabubesi Investments (Pty) Ltd partnered in a R1-billion real estate deal.

In a stinging judgment on Yengeni's appeal against his conviction and sentence, Bertelsmann found that Yengeni had lied to the court by claiming Ngcuka had at the January 2003 meeting promised to "see to it that the applicant would not receive a sentence in excess of R5 000".

Yengeni had first mentioned this deal only in February 2005 - a good two years after sentence was passed on him, and after he had had at least eight opportunities during his appeal process to raise the matter with his defence counsel and the prosecution.

This made it highly improbable he had ever been offered a deal.

But the uncontested fact is that the meeting took place and that a deal was struck that the public prosecutor would not call for Yengeni to be imprisoned - a deal that the prosecution abided by in court. Bertelsmann found it amounted to a "private treaty". This was apparently intended to "subjugate the courts," the judges jointly found.

This had the effect of "blurring the line between the prosecutorial, that is the executive, and sentencing powers, which is a judicial power," Bertelsmann said.

Sapa reported that the ANC noted "with pain" the judges' dismissal of Yengeni's appeal, but added that it would "continue to respect the judiciary".

Legal experts were baffled at why the prosecution had last month asked for Yengeni to be given only a suspended 18-month penalty.

"It does look like there is some horse-trading going on behind the scenes at a high level," said Wits Law Clinic lecturer Professor Steve Tuson.

The judge said that while the amendment to the Criminal Procedure Act that had formalised the practice of plea-bargaining had proved a necessary and useful tool for prosecutors, he felt the practice had been abused.

Referring in general terms to the Travelgate scandal which saw members of Parliament fraudulently getting whopping travel discounts, Bertelsmann said he was concerned that an "apparent pattern" was emerging wherein "agreed non-custodial sentences imposed on politicians may lead to an impression that MPs were not treated the same as other accused".

He cited the case against former ANC Women's League president Winnie Madikizela-Mandela, who had been convicted on 43 charges of fraud and 25 of theft totalling R1-million.

Bertelsmann, who in July 2004 reduced Madikizela-Mandela's five-year jail term to a suspended sentence of three-and-a-half years, said she "would have been incarcerated" had it not been for the prosecution's failure to call for her to do time.

Despite Yengeni's defence that the alleged harshness of a jail term against him showed the prosecution wanted him "sacrificed the appellant on the altar of deterrence", Bertelsmann said it was "heresy" to suggest that jail was only for violent, not white-collar criminals.

In fact, he and Preller had been keen to increase Yengeni's "lenient" sentence, but to do so would have delayed justice being served even longer.

Bertelsmann found Yengeni had been motivated by greed.

The judges dismissed his applications with the costs of two counsel in both cases - and ordered the scrapping from the record of an affidavit by Yengeni in which he had launched a "vitriolic attack" on Ngcuka.

The judgment was a victory for the press, especially the Sunday Times' investigations unit which Yengeni had tried to smear with full-page newspaper ads falsely denying its journalists' accurate exposé in 2001 of his discount deal.

Yengeni, out on R10 000 bail, said "we will appeal to the next level". His lawyer, Marius du Toit, said the sentence only amounted to an effective eight months behind bars followed by correctional supervision.

From: http://www.thestar.co.za/index.php?fSectionId=131&fArticleId=2991964