'Amigos' corruption trial: Lead prosecutor's removal, explained

Sometimes people take a principled stand in life when they have everything to lose. In the case of senior state advocate Ncedile Dunywa, it appears to have led to his removal as lead prosecutor in the R144 million ‘Amigos’ corruption and racketeering trial. Daily Maverick can today reveal that Dunywa was dumped after he refused to take part in a cover-up around the controversial decision to withdraw criminal charges against the top ANC figures.

The 43-year-old advocate's troubles started after he was asked if he would sign an already prepared memorandum, which stated his prosecutions team had reviewed the evidence in the case and made presentations to the acting KwaZulu-Natal Director of Public Prosecutions advocate Moipone Noko. The memo further stated that the prosecutions team had advised Noko to withdraw criminal charges against top ANC figures Mike Mabuyakhulu and Peggy Nkonyeni.

Dunywa refused to sign the memo authored by a member of his prosecutions team because it was, quite simply, a lie.

The memo was drawn up after a Democratic Alliance’s application to try to force the National Prosecuting Authority to disclose why it had dropped criminal charges against Mabuyakhulu and Nkonyeni was heard in court last October. The cover-up started after the Democratic Alliance’s counsel argued that the courts could ask for a private viewing, known as a “judicial peek”, of documents that Noko might consider confidential but relevant to her decision to drop the charges against Mabuyakhulu and Nkonyeni.

Yet Dunywa's prosecutions team had not reviewed the evidence, nor given any advice to Noko to drop the charges against Mabuyakhulu and Nkonyeni, and he refused to take part in a cover-up, say staff at the prosecuting authority.

A junior member of Dunywa’s prosecutions team, who had assisted him on the case, is understood to have signed the memo, while another junior member of the legal team refused to sign it.

Dunywa was removed as lead prosecutor on the case in November last year, shortly after arguments were heard in the Democratic Alliance’s application to try to compel Noko to provide reasons for dropping charges against Mabuyakhulu and Nkonyeni.

While Dunywa declined to comment, National Prosecuting Authority staff say he was appalled by the lack of integrity playing out in the institution. After all, he had been involved in the rigorous process of drawing up the criminal charges for the numerous accused in the case, which included a number of ANC heavyweights and high-flying Uruguayan businessman Gaston Savoi and his company Intaka. No new evidence or witnesses had emerged to alter Dunywa's opinion that what they had put together was sufficient for the prosecution of Mabuyakhulu and Nkonyeni.

Noko’s decision to let nine of the accused individuals and companies off the hook was in stark contrast to the National Prosecuting Authority's earlier determination to vigorously pursue charges against 23 accused in this massive corruption and racketeering case, which spans several provinces.

Savoi is charged with bribing ANC and government officials in KwaZulu-Natal and the Northern Cape to secure contracts for the sale of water-purification systems and oxygen machines by Intaka to health and local government departments, at massively inflated prices.

His legal team asserts he was asked to make donations to the ANC, and is innocent of the charges against him. According to papers submitted to court, Savoi and some of the accused referred to each other as “Amigo" in text messages, which is how the case earned its tag in the media.

The case was launched with great fanfare in 2010, and the KwaZulu-Natal Assets Forfeiture Unit seized R180 million of Savoi’s assets that could be forfeited to the state if the businessman was convicted. His Maserati, a Ferrari and five of his luxury properties in the Cape were attached in a blaze of media coverage. Intaka’s Learjet went under the gavel for R26.5 million as legal costs mounted.

The biggest blow for the prosecutions team came after Noko was catapulted from her previous position as head of the prosecuting authority’s provincial tax division into the post of acting KwaZulu-Natal prosecutions head. Staff at the National Prosecuting Authority had predicted her arrival would pave the way for political interference in the corruption and racketeering case.

The highly respected advocate Simphiwe Mlotshwa was removed from the post to make way for Noko, after staff claimed he refused to bow to pressure to drop the charges against Mabuyakhulu and Nkonyeni, both seen as firm allies of President Jacob Zuma.

Two weeks after she stepped into the post, Noko instructed Dunywa to withdraw the charges against nine accused, including Mabuyakhulu and Nkonyeni, in the KwaZulu-Natal High Court in Pietermaritzburg.

In October 2012, Dunywa, the lead prosecutor, carried out her instructions which were delivered to him without prior warning, and withdrew the charges in court. While he expected to later view a detailed record of her decision, it was never made available to him.

For her part, Noko declined to make public the reasons behind her startling decision, and merely claimed there was “insufficient evidence” to proceed against the accused.

All the evidence in the case had been formally presented and cleared by the South African Police Service, and the then National Director of Public Prosecutions at the time, Menzi Simelane, who signed an order for the case to proceed to court.

Simelane was later removed from office after the Democratic Alliance went to court and challenged his fitness for office. His acting successor, embattled advocate Nomgcobo Jiba, is believed to have declined to give the required written permission for Noko to withdraw the criminal charges against Mabuyakhulu and Nkonyeni, as prescribed by the National Prosecuting Authority Act.

In 2013, Zuma made Noko’s appointment to the provincial post permanent, despite staff complaints about her conduct and ongoing internal strife at her office.

Waiting for judgment day

Arguments in the Democratic Alliance's application to try to make public the reasons for Noko's withdrawal of charges against Mabuyakhulu and Nkonyeni were heard in court in October last year, and judgment is still awaited.

In her answering affidavit submitted in this case, Noko stated she had considered representations made to her by some of the accused, had held consultations with staff and personnel involved, and had a look at the indictment and reconsidered the matter. She had eventually come to the conclusion that the charges against nine accused persons and companies, including Mabuyakhulu and Nkonyeni, should be withdrawn "for now".

Noko said she believed the application lacked merit, was premature and speculative and falls to be dismissed with costs:

“As Applicant was not the initiator of the charges against the accused persons, which were subsequently withdrawn, it cannot be in a better position than me and the team that has been close to the investigation of the case that led to the charges, in determining and weighing interests of the public, as against harm that realistically can be caused by the disclose (sic) of an entire case, and the reasons why it is going in a particular direction, especially to the Applicant, who is a politician of a rival political party to that to which the third (Nkonyeni) and fourth respondents (Mabuyakhulu) belong.”

Arguments in this matter were heard by Judge Rashid Vahed SC in the KwaZulu-Natal high court in Pietermaritzburg, and concern is growing around why the judgment has not yet been handed down.

“The judge heard the arguments at a hearing in October last year,” said attorney Johann Krog, who worked on the case for the Democratic Alliance when he was a member of the provincial legislature. "We just don’t know when judgment will be given.”

At the time of his removal as lead prosecutor in the “Amigos” case in November last year, Dunywa had been in the process of attempting to secure plea bargains with some of the accused. The National Director of Public Prosecutions Mxolisi Nxasana, who is facing a commission of inquiry set up by Zuma about whether he is fit for office, is said to have given his blessing to these attempts.

When asked by the Daily Maverick why Dunywa had been removed as lead prosecutor on the case, Noko said she was not consulted on the matter.

National Prosecuting Authority spokesperson Velekhaya Mgobhozi was referred by Noko to the head of the National Prosecution Service, Advocate Silas Ramaite, who has not yet responded to the query.

"I learnt from his affidavit in response to the defence’s application for a permanent stay of prosecution, and from the prosecutor concerned, that the latter has been removed from the case as I was not engaged/consulted when this decision was taken,” Noko wrote in response to the query from Daily Maverick.

If Noko's "record of decision” on why she decided to withdraw the charges against Mabuyakhulu and Nkonyeni is finally made public, the Democratic Alliance could then apply for a review of her decision.

Both Mabuyakhulu and Nkonyeni have claimed they are innocent of the charges brought against them, and their careers appear not to be affected. Nkonyeni is currently the KwaZulu-Natal MEC for Education, while Mabuyakhulu is the KwaZulu-Natal MEC for Economic Development, Tourism and Environmental Affairs.

Savoi’s attorney George van Niekerk said the charges have not been withdrawn against his client. “We have brought an application for a permanent stay of the prosecution. It should be heard in due course,” said Van Niekerk. "I regret that I am not at liberty to comment further.”

Dunywa is now handling labour cases, and there have been no moves to try to fire him. Those close to him say this would involve a disciplinary hearing that would attract unwanted public attention.

The state advocate has not challenged his removal as lead prosecutor in the “Amigos” case, as he apparently wants nothing more to do with the matter.

And when Dunywa was recently asked to assist in preparing responses to representations from some remaining accused in the “Amigos” case, he apparently informed the prosecutions team it would have to obtain a court order to reinstate him as he had not been consulted about his removal as lead prosecutor on the case. DM

Photo: Gaston Savoi (By Craig McKune, working for Amabhungane).