“The charge sheet had it the other way around”
Legal commentary
Advocate Peter Serunye gave evidence on day 153 about the matter he described as "commonly referred to as the Mokwele matter (State versus Khumalo and others)". He came to it late: "When I came in two months after the arrest." His evidence on the state of the case was direct. On the qualifications that had been questioned, the position put to him was that "all the qualifications that she listed in her job application and CV have actually been verified", and the Chairperson summarised it as "the CV as it stands, the qualifications are there and there is no issue with them". Advocate Serunye agreed: "those were verified, Commissioner." What remained open was narrower — "the requirement of three-year managerial experience in the field of the post". On that point the record carries a genuine conflict: an affidavit from BMW states "she was never a manager with us", while, in Advocate Serunye's words, "she says she was a manager". That dispute is unresolved on this record and nothing here settles it. On the charge itself, his evidence was that "your charge sheet is defective in that you are charging them with section 4 of PRECCA", and he explained the defect in terms of who occupies which role in the section: of the Generals, "They should receive, not give"; of the civilian, "this civilian should give, not receive"; and "in their charge sheet, they were having it the other way around". He told the Commission "I cannot find any evidence of corruption", and an amended charge sheet followed which "reduced the matter to two counts", including a count "under section 21 of the Prevention and Combating of Corrupt Activities Act 12 2004". The sequence drew comment from him: "After arrest, it is only when you start investigating", and "you could not have arrested, go through the processes, bail applications and stuff and only do the investigations after" — particularly, he said, in "a high profile case or a case that involves high ranking officials in government". He also put the contingency on the record: "what if Serunye did not come in on 8 August? I would not have asked these questions." The contrary view was put to him in cross-examination and belongs beside his: Advocate Baloyi SC put that "Colonel Padayachee thought so, that there was enough to persuade a Court that she would have committed a crime in the future", and that "someone in your office thought that there was a good case here, including of state capture". The Commission has not made findings on any of this.
In plain terms
A prosecutor told the Commission that by the time he took over a high-profile corruption case, two months after the arrests, he could not find the corruption. The case is the one against Lieutenant General Samuel Dumisani Khumalo and others, known as the Mokwele matter. Advocate Peter Serunye said the qualifications that had been questioned checked out — the Chairperson put it as "the CV as it stands, the qualifications are there and there is no issue with them", and Serunye agreed they had been verified. One question stayed open, about whether she had the three years of managerial experience the post required: BMW's affidavit says "she was never a manager with us"; she says she was. Nobody has settled that. The charge sheet was a different problem. Serunye said it was "defective", and the reason is almost arithmetical: the law he was reading has the public official on the receiving end and the private person on the giving end, and the charge sheet had swapped them. "They should receive, not give," he said of the Generals. "This civilian should give, not receive." The charges were later cut down to two counts. The part that lingers is the order things happened in. "After arrest, it is only when you start investigating," he said — you cannot arrest people, take them through bail, and do the investigation afterwards, least of all in a case involving senior government officials. And he pointed out that the questions only got asked because he happened to arrive: "what if Serunye did not come in on 8 August? I would not have asked these questions." Counsel pushed back, and that belongs here too: a colleague, Colonel Padayachee, had thought there was enough for a court, and someone in his own office thought there was a good case. The Commission has made no findings. What is on the record is one prosecutor's account of a case he says was built in the wrong order.
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