Zizi Kodwa's lawyer frustrated at 'ping-pong' postponements in buildup to corruption trial

10 Sep 2024

Former Sports, Arts, and Culture Minister Zizi Kodwa, who is facing corruption charges alongside former Enterprise Outsourcing Holdings executive Jehan Mackay, has threatened to consider seeking a separation of trials if the case is postponed again at their next court appearance on 3 October.

The matter was initially set down on Tuesday in the Palm Ridge Specialised Commercial Crimes Court in Gauteng to hear the outcome of Mackay’s representations to the Director of Public Prosecutions to drop the charges against him. However, the court heard Mackay’s representation did not reach the Director of Public Prosecutions’ office.

Addressing the court, Mackay’s lawyer Ian Small-Smith said that he was unsure where the representation’s submissions went wrong.

According to Small-Smith he had addressed a letter and representations on 13 August 2024 to the Director of Public Prosecutions and to the regional head of the Specialised Commercial Crimes Unit, Johannesburg. It was hand delivered, he told the court, adding that he did receive proper indication that it was received in the building of the Director of Public Prosecutions.

During the pair’s last appearance on Wednesday, 21 August 2024, the court heard that the head of the Specialised Commercial Crimes Unit denied a request from Mackay to drop the charges.

Read more in Daily Maverick: “Zizi Kodwa and Jehan Mackay’s corruption case postponed for Mackay’s bid to have charges dropped”

This was the pair’s third appearance. Kodwa and Mackay made their first appearance after their arrest on 5 June. They were released on the same day after posting R30,000 bail.

Following his arrest on corruption charges involving alleged bribes and luxury perks totalling more than R1.6-million and his subsequent release on bail, Kodwa resigned as sport, arts and culture minister. In late July, he resigned as an MP after he was sworn in following the 29 May elections despite facing criminal charges.

Charges against Kodwa stem from the report from the State Capture commission. The then Deputy Chief Justice, Raymond Zondo, recommended that President Cyril Ramaphosa “consider” Kodwa’s position concerning the “debts” he owed to Mackay, who is accused of bribing politicians and paying donations to the ANC to win lucrative government contracts.

Justice Zondo found that in 2015 and 2016, Enterprise Outsourcing Holdings entities and Mackay made cash payments totalling R1.68-million for Kodwa’s benefit.

During his testimony at the Zondo Commission in June 2021, Kodwa testified that he met Mackay in 2013 and the pair became friends.

It is alleged that in 2015, Mackay gave Kodwa R1-million of which Kodwa used R890,000 to buy a Jeep. Kodwa, who was then the national ANC spokesperson and an National Executive Committee member, claimed he was struggling financially at the time.

Unfortunate state of affairs

On Tuesday, the court heard that on 13 August 2024, Small-Smith wrote a letter and made representations to the Director of Public Prosecutions and the regional head of the Specialised Commercial Crimes Unit in Johannesburg. This was hand delivered, and Small-Smith received proper indication that it was received in the Director of Public Prosecutions building.

“In the letter I indicated protocol would be that the head of the Specialised Commercial Crimes Unit would deal with it, and if it is refused by the unit head it would be elevated to the Director of Public Prosecutions. When the unit refused the representations I assumed that it was good enough to have already hand delivered representations to the Director of Public Prosecutions in a letter. Last week I reached out to the Director of Public Prosecutions and he indicated that he had not yet received it,” he said.

Small-Smith said it was an unfortunate state of affairs, and that they certainly did not intend to waste anybody’s time.

“In my client’s mind it was submitted nearly a month ago, but I absolutely do accept the word of the Director of Public Prosecutions that he hasn’t received it. Your worship, we are going to resubmit and slightly rebolster it because we now have the added advantage because the Specialised Commercial Crimes Unit head has given us reasons why he has rejected it.”

Mackay’s lawyer plans to resubmit the representations to the Director of Public Prosecutions this week, and anticipates receiving a decision before his next court appearance on 3 October.

Separation of trials

Kodwa’s lawyer, Zola Majavu, reminded the court that on the penultimate and final occasion, he stated that on behalf of Kodwa, they were trial ready.

“We all received the disclosure from the State at our first appearance. That docket is 1,352 pages long, and I’ve read them all. According to my client’s instructions, we’re ready to set a trial date to deal with the pre-hearing matters,” Majavu told the court.

Kodwa was arrested in June.

Majavu emphasised that his client was an office bearer who, as a result of this “spurious” case, has had to resign. He was a minister of sport and could have easily been a minister in the seventh administration.

Read more in Daily Maverick: Cosatu welcomes Zizi Kodwa's resignation - questions why ANC returned him to parliament

Now, he said, Kodwa was in a position where he was co-charged with someone whose rights he also respected. However, the cumulative effect of all this “ping pong” had a direct impact on him.

“I have a job to do, and I need to protect a client’s rights. All we need to do, Your Honour, is look at the annotation on the charge sheet. Your Worship will notice that even on that last occasion, I did give an advance warning that if there are delays today that have nothing to do with my client, we may reconsider our position.

“Where am I going with this? I’m hinting that in due course, we may consider filing an application for trial separation. I mean no disrespect to the co-accused or his legal representative, but the truth is that the prejudice, real or perceived, against my client grows stronger with each passing day,” Majavu stated.

Majavu also stated that he hoped this was the last time they dealt with interlocutors that had nothing to do with Kodwa, adding that they were metaphorically joined at the hip, unfortunately.

“We were ready three moons ago, we are ready today, we will be ready on 3 October. There is no progress, at least no one will be taken by surprise at what our intentions are,” he said.

The matter has been adjourned until October 3, 2024. DM

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Unfortunate state of affairs

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