Mapisa-Nqakula says she opened a can of worms with inquiry into Ramaphosa's Phala Phala saga

JOHANNESBURG - Nosiviwe Mapisa-Nqakula, the corruption-accused former parliamentary speaker, said her legal challenges with the State began when she convened an inquiry into the Phala Phala matter.

“When I elected to convene a parliamentary inquiry into the Phala Phala matter, I made political enemies,” she said in a court affidavit.

“When I made this choice, I did so without fear or favour and followed the rule of law. I opted for a public vote on matters concerning the sitting President, Mr Cyril Ramaphosa.”

As National Assembly Speaker of the sixth democratic administration, Mapisa-Nqakula established the Section 89 panel looking into the behaviour of Ramaphosa concerning the break-in at his Limpopo game farm, Phala Phala.

The panel later found Ramaphosa’s conduct may have committed four violations and misconduct relating to his office as state president.

While the Section 89 report made damning conclusions on Ramaphosa, the ANC used its majority in parliament to vote against its adoption and a subsequent impeachment investigation against the president.

Mapisa-Nqakula’s insinuations against Ramaphosa appear on a recently filed court application to have the state disclose further details surrounding her ongoing corruption case.

She is currently charged with 12 counts of corruption and one of money laundering, in a matter before the Pretoria High Court.

The charges relate to her time as Defence minister when she allegedly solicited and received kickbacks amounting to R4,5 million rand from a defence contractor.

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The contractor in question is Nombasa Ntsondwa-Ndhlovu, whose company, Umkhombe Marine was a service provider to the department.

In Mapisa-Nqakula’s recently filed court application, she wants access to sections A, B and C of the police docket against her.

While the state said it has already disclosed section A of the docket, which contains the charge sheet and indictment, it is refusing to hand over the other sections which deal with correspondence (Section B) and the investigation diary (Section C).

Mapisa-Nqakula said in her application, Ntsondwa-Ndhlovu was initially investigated by the military for corruption before her matter was “suddenly abandoned” and she was turned into a state witness.

Mapisa-Nqakula is requesting the Military Police docket against Ntsondwa-Ndhlovu and all related material to her case.

Mapisa-Nqakula also requests “informer dockets” from the state.

She said her application is based on the belief the state is prosecuting her on “highly suspicious and tenuous evidence.”

“I accordingly request if this court to intervene and restore the balance, by equalizing the obvious asymmetry of information caused by the clear obfuscation of the process by which the State has gathered - or indeed manufactured - evidence against me,” said Mapisa-Nqakula in her court affidavit.

In her application, Mapisa-Nqakula repeatedly claims that she is being prosecuted through trial by the media. 

She said many details of her case were linked to the media prior to her or her legal team being aware of them.

“The media seemed to be better informed than anyone in this matter,” she said.

Mapisa-Nqakula said she learned through the media that Ntsondwa-Ndhlovu and her husband suspended Deputy Surgeon-General of  SA National Defence Force Major General Noel Ndhlovu were being investigated for a tender worth R210 million.

She also alleges the state made “disclosures” to the media.

“The decision to make disclosures to the press and the availability of this second statement are issues which will more than likely have been dealt with in the "B" and "C" sections of the docket,” she said. 

“The facts and circumstances of these decisions are vital to the court when it seeks to make a rational, reasonable and informed decision as to the credibility of the investigation; the credibility of the state witnesses; and as to whether the incumbent prosecutor, Advocate (Bheki) Manyathi can prosecute in this matter, more especially because he is a witness in some or all of these issues.”

On the 19^th of March 2024, the Johannesburg home of Mapisa-Nqakula was raided by the National Prosecuting Authority’s (NPA) Investigative Directorate (ID).

Mapisa-Nqakula said the media had the “State brief” before she and her legal team were able to challenge the legality of the raid. 

She said during the raid, a wig was taken at “random”, documents were seized but not disclosed to her legal team and audio recordings of the proceedings have also not been disclosed yet.

“The material point is that it is evident that full disclosure of the "A" section has not been made, leaving aside the failure to disclose the "B" and "C" sections,” the court application reads.

WITNESSES

In the application, Mapisa-Nqakula, said a majority of the State witness affidavits were based on hearsay evidence which had not been corroborated. 

Among the State disclosures are also statements from the star state witness, Ntsondwa-Ndhlovu. 

The first statement was made on 11 September 2023 (almost seven months before the police registered a case for Mapisa-Nqakula).

Ntsondwa-Ndhlovu is listed as a Section 204 witness; a person who may be involved in a crime that testifies against other accused people in exchange for immunity from prosecution.

Ntsondwa-Ndhlovu’s affidavits detail how she bribed Mapisa-Nqakula with wads of cash in exchange for her interfering in a deadlocked tender deal.

However, Mapisa-Nqakula denies all of this and raises issues with the state’s reliance on Ntsondwa-Ndhlovu’s evidence.

“The principle that a written confession or admission of one suspect is inadmissible against any other suspect or accused,” said Mapisa-Nqakula.

“The principle that the evidence of a Section 204 witness must be proven to have been made freely and voluntarily without any undue influence.”

Mapisa-Nqakula said there is “undue pressure” on Ntsondwa-Ndhlovu to testify against her, as in her affidavit Ntsondwa-Ndhlovu said the state can re-instate the corruption charges against her if her evidence is not truthful.

Interestingly, Mapisa-Nqakula said the state also disclosed an affidavit by Ntsondwa-Ndhlovu’s husband, Noel Ndhlovu.

Mapisa-Nqakula said Ndhlovu is a “co-perpratror” to the crimes of his wife but the State has not given him the protection of a Section 204 witness. 

He has already been implicated in the Pretoria matter and appears therefore to have benefited from his wife's deal with the State representatives,” said Mapisa-Nqakula.

“He therefore has every reason to support his wife's narrative, but in fact only gives hearsay evidence.”

Mapisa-Nqakula said that based on the time when the witness statements were deposed, it is clear she was being investigated from August 2023 however the matter was only registered by police in March 2024. 

This is the basis of her wanting the state to disclose the police investigation diary (Section C), said Mapisa-Nqakula.

“The danger, in this regard, is that procedural problems - which may have a material impact on the admissibility, or the probative value, of evidence gathered might be sanitized from the docket by merely constituting a new one,” she said.

Mapisa-Nqakula said she will be “prejudiced” if the court doesn’t grant her application as there is risk of inadmissible evidence being used against her.

STATE RESPONSE

The state’s opposing affidavit was provided by Assistant Director Abram Binang, an investigator for the NPA’s Investigative Directorate.

In the affidavit, Binang said the state would not be dragged into a political battle with Mapisa-Nqakula and would only respond to issues of law.

Binang said the state is not aware of any informer dockets related to Ntsondwa-Ndhlovu’s docket with military police.

He said the state was opposing releasing the investigation diary and correspondence of the investigating officers (otherwise known as Section B and C of the police docket).

“They are privileged, confidential and have no relevance to the applicant's fair trial rights,” said Binang in his court affidavit.

“They do not constitute exculpatory evidence in favour of the applicant and are also not incriminating against her. They will therefore not be used at trial.”

CASE AGAINST NTSONDWA-NDHLOVU STRUCK OFF ROLL

In his affidavit, Binang said the R102 million corruption case against Ntsondwa-Ndhlovu was struck off the roll and not “suddenly abandoned” by the State as Mapisa-Nqakula is alleging.

Ntsondwa-ndhlovu, the wife of a suspended senior military general, was arrested in 2020, in connection to several cases of tender fraud.

At the time of her arrest, the NPA said her company, Umkhombe Marine, provided false information to the SA National Defence Force to get contracts.

Binang said the ID “had no role to play” in the initial corruption case against Ntsondwa-Ndhlovu.

He said Ntsondwa-Ndhlovu made her first court appearance on 14 October 2020. She made a further 20 court appearances over the next four years until her matter was struck off the roll on 1 March 2024.

Binang said the raid on Mapisa-Nqakula’s home was legal and authorised by a magistrate.

Binang said Ntsondwa-Ndhlovu’s military police docket, which Mapisa-Nqakula is requesting, is irrelevant.

He said the ID has no control over what the media publishes.

Throughout the answering affidavit, Binang accuses Mapisa-Nqakula of using emotive language without any legal basis or evidence.

Binang strongly denies the investigating team would have disclosed its evidence to the media.

He said the suggestion by Mapisa-Nqakula that such a disclosure would be recorded in Section B and C of the police docket was “ludicrous and it would have been rather counterproductive and stupid to record such impropriety and irregularity in the docket.”

Binang said there is no basis for prosecutor Bheki Manyathi to recuse himself from the case. In her failed urgent application to interdict her arrest, Mapisa-Nqakula listed Manyathi as a third respondent.

Manyathi also deposed an affidavit during the interdict however Binang said this does not make him a “witness” in the case any much as makes Stephen May (Mapisa-Nqakula’s attorney, who also deposed an affidavit for the interdict).

Binang said documents seized at Mapisa-Nqakula’s home were disclosed to her legal team along with the transcript of the audio recording on the day.

He said the actual audio recording will be disclosed later, along with any other missing items on Section A of the police docket.

“It is important to pause and point out that it does happen that when disclosure is made to the accused, certain documents or information may be omitted due to human or electronic error,” said Binang.

Binang said there is nothing “improper” or unusual with the state investigating the matter before officially registering it with the police.

Binang said it was Ntsondwa-Ndhlovu that first approached the state with evidence against Mapisa-Nqakula in April 2023 and not the other way around.

He denied Mapisa-Nqakula’s claim that Ntsondwa-Ndhlovu had “undue pressure” on her by the state.