The Investigating Directorate on Tuesday announced that it lodged an application to appeal acting Judge Gusha’s judgment on the R24.9 million Gupta-linked Nulane matter, in which all accused persons were acquitted.
The application was lodged on Monday, (8 May 2023), if successful it can either be heard by a full bench of the Bloemfontein High Court or the Supreme Court of Appeal.
The application is for leave to appeal the 21 April 2023 judgment that granted seven accused discharge in terms of Section 174 the Criminal Procedure Act 51 of 1977(Act).
Dr. Limakatso Moorosi was also acquitted.
The application is also based on the 23 February 2023 verdict that rendered key documents and exhibits provided by the state inadmissible as evidence against the accused.
The appeal is based on the following:
• The learned judge erred by discharging the seven accused in terms of Section 174 of the Act in circumstances where the state had presented prima facie evidence upon which a reasonable court might convict. The ID said there were reasonable prospects that another court would come to a different conclusion and or find that granting the discharge was a misdirection which was contrary to legal precedent, constituted a gross irregularity in the trial and was prejudicial to the state.
• That the learned judge erred by deviating so drastically from the parameters of the test for a discharge in terms of Section 174 of the Act that a miscarriage of justice occurred in that the accused persons against whom a prima facie case had been made were acquitted without having been put to their defence.
• It is submitted to be trite law that the Section 174 inquiry does not entail a finding being made as to whether or not the evidence of the state at this stage is plausible or constituted proof of guilt beyond a reasonable doubt.
• The learned judge erred by concluding in her judgment that the state failed to pass even the barest of threshold and that an application for discharge cannot be refused in the hope that the accused persons will incriminate themselves when they give evidence, thereby closing material defects in the state’s case.
The ID said there were reasonable prospects that another court would find that the evidence presented before the court by the state called for a reply and that the accused ought to have been called upon to discharge their evidential burden.
• The learned judge erred in her interpretation and application of the “best evidence rule”.
• The learned judge erred in her interpretation and application of the law relating to the cautionary rule, Section 204 of the Act, the assessment of the evidence of the Section 204 witness and in the credibility findings made against the Section 204 witness.
• The learned judge further erred in her interpretation and application of the doctrine of common purpose (collusion and conspiracy).
• In ruling that the State had failed to pass the barest evidentiary threshold, the learned judge found that, “lastly and perhaps more importantly, the state did not prove any common purpose between the accused.”
The ID said there were reasonable prospects that another court would find that accused 1, 2 and 3 were acting in furtherance of a common purpose with the other accused and Cezula.
• The learned judge erred during the Section 174 judgment in finding that Mahlangu’s evidence did not serve as authentication on the disputed documents since he was neither the author thereof nor was, he present when same were either authored or had signatures appended thereto.
The ID said there were reasonable prospects that another court would find that the learned judge erred by making contradictory rulings which prejudiced the State when dealing with the issue of the admissibility of documentary evidence.
The ID said it was mindful of the court process and will not be commenting on the application filed.
