WRAP | Mapisa-Nqakula's urgent bid to block her arrest struck from the roll - with costs

Court adjourns.

There is no legal barrier blocking the state from arresting Mapisa-Nqakula.

- Karyn Maughan

Potterill says that Mapisa-Nqakula's right to legal representation does not amount to her lawyer dictating to the state how and when she can be processed by a court.

She adds that a court cannot interdict statutory authorities from exercising their statutory duties.

The judge says she is "not uncertain" about the state's case against Mapisa-Nqakula and declines to take a "judicial peek" at the evidence against her.

- Karyn Maughan

The NPA engages with National Assembly Speaker Nosiviwe Mapisa-Nqakula's defence.

(Photo by Alfonso Nqunjana/News24)

Potterill has also found that Mapisa-Nqakula had been offered the courtesy of handing herself over to the authorities, something that she says most accused are never offered.

The judge says the state's delay in processing Mapisa-Nqakula was also a courtesy.

- Karyn Maughan

Potterill says the effect of the relief that Mapisa-Nqakula is seeking will be to "open the floodgates" for suspects to interdict their arrests on the basis that they were unlawful and the cases against them were weak.

- Karyn Maughan

While Mapisa-Nqakula argues that this case is urgency because her dignity and liberty is at stake, Potterill says the state has made it clear that it will not oppose bail for her - and arrest without detention is not a basis for an urgent application.

She cannot find that the state's case against the Speaker is weak, she says, because there is no evidence to show this.

- Karyn Maughan

The ID has asked Potterill to strike Mapisa-Nqakula's application from the roll on the basis that its urgency was entirely self-created.

She notes that this application was launched on a Saturday and then heard on a Monday, after the state was forced to file its replying affidavit on Monday morning.

She says it is "patently clear" that none of the court's practice directives were adhered to by Mapisa-Nqakula's lawyers and says the timeframes they imposed in this case were unreasonable.

- Karyn Maughan

National Assembly Speaker Nosiviwe Mapisa-Nqakula's defence team is seen in court.

(Photo by Alfonso Nqunjana/News24)

Potterill is now examining the law on whether a case can be considered urgent.

It seems very likely that this will be the basis on which she decides this application.

- Karyn Maughan

ID prosecutor Bheki Manyathi has revealed that Mapisa-Nqakula knew from 9 March that the state wanted her to appear in court on corruption charges and had asked her to hand herself over.

He stressed that the state would not oppose bail for her and has denied that this case is urgent.

- Karyn Maughan

Potterill is now going through the history of Mapisa-Nqakula's latest urgent application, which followed a case that she had intended to be heard on 9 April.

Mapisa-Nqakula based this second urgent application on the fact that her "unlawful arrest" by the state was "imminent".

In her urgent application, she describes herself as South Africa's third most important functionary.

- Karyn Maughan

Mapisa-Nqakula's attorney Stephen May had previously asked that she only be charged on 3 April, which was when he was available to represent her.

Her urgent legal action has now effectively ensured that she achieved that delay.

- Karyn Maughan

Gauteng High Court in Pretoria Judge Sulet Potterill will on Tuesday morning rule on National Assembly Speaker Nosiviwe Mapisa-Nqakula's urgent bid to block the investigating Directorate and other law enforcement authorities from arresting her on charges of corruption and money-laundering.

Those charges, the state alleges, relate back to her tenure as defence minister and concern bribes of R2.5 million that were allegedly paid to her by a defence contractor who has now turned state witness.

Mapisa-Nqakula wants to be summonsed to appear in court, but the ID is adamant that she cannot dictate the terms of her own prosecution.

Her lawyers also want Potterill to take a "judicial peek" at what they allege is the "paper thin" evidence against her - a request that the state has slammed as breaching its constitutionally enshrined independence and power to make decisions on whether suspects should be prosecuted.

- Karyn Maughan

Handbags, wigs and a missing bear skin: What we know about the ID's case against Mapisa-Nqakula

The Investigating Directorate's (ID) corruption case against National Assembly Speaker Nosiviwe Mapisa-Nqakula appears to rest on a defence contractor who says she bribed her with R2.5 million – and is herself accused of tender fraud totalling R100 million.

Potterill says she will give her ruling on this application on 2 April. The state undertakes not to arrest Mapisa-Nqakula until that ruling is delivered. We adjourn.

-Karyn Maughan

Willis wraps up by asking the judge if, should she not grant the orders sought by the Speaker, she can order that the state and defence engage with each other over the future progress of the corruption prosecution against Mapisa-Nqakula.

Gwala says there is no need for this - and says he does not have any instructions on Willis' request that the judge issue "some form of protection" for Mapisa-Nqakula until Potterill gives her ruling. The judge leaves so she can establish when she will give her judgment on this case. 

-Karyn Maughan

Willis accuses the State of treating Mapisa-Nqakula with "continual threats" and "continual terror tactics". He has also asked Potterill to grant Mapisa-Nqakula "some form of protection" until she delivers her ruling. 

-Karyn Maughan

Willis accuses the State of being "unreasonable" and irrational". He has again accused the State of leaking the 204 witness statement and says that this has resulted in Mapisa-Nqakula becoming an "accused" person.

-Karyn Maughan

Willis again accuses the State of "delinquent" conduct in its efforts to arrest and prosecute Mapisa-Nqakula.

-Karyn Maughan

Willis again argues that the two-week period asked for by Mapisa-Nqakula's lawyer (before she could be represented by him at her first appearance) was "reasonable". He gets visibly aggravated when Potterill questions the effect of the interim order that Mapisa-Nqakula is seeking and suggests that it will block her arrest.

Willis responds that the order will only be interim and will simply block the State from "unlawfully" arresting Mapisa-Nqakula. 

-Karyn Maughan

Willis gets upset because Potterill interrupts her. She says that he has 15 minutes to conclude his argument. He argues that Mapisa-Nqakula is entitled to be represented by a lawyer of her choice (who is only available to represent her on 3 April). 

-Karyn Maughan

Willis now replies.

-Karyn Maughan

Gwala says widespread reporting on the case against Mapisa-Nqakula has already damaged her reputation. He concludes.

-Karyn Maughan

Gwala says Mapisa-Nqakula and her lawyers have failed to make any specific allegations about who is allegedly leaking information to the media. He says they have failed to say "who" leaked the section 204 statement to the media and insists the NPA has not leaked any information to the media - despite details of the 204 statement making their way into the Sunday Times.

-Karyn Maughan

Gwala says it "can never be urgent" for an accused to have access to the docket against them before they are even formally charged. He stresses that the NPA's processes can't be dictated by the status of an accused person.

If this was the case, he says, "it would collapse the justice system". 

-Karyn Maughan

Gwala argues that Mapisa-Nqakula's argument that Potterill should have a "judicial peek" at the case against her is, essentially, a "review via the back door". It is not for a judge to fulfil roles played by the police and the State in deciding to charge an accused, he adds. 

Gwala points out that Mapisa-Nqakula has multiple legal representatives in court today - and asks why they could not have simply taken her to her first corruption trial appearance. 

-Karyn Maughan

"The law knows no positions," Gwala says.

-Karyn Maughan

Gwala also stresses that the ruling that Mapisa-Nqakula is relying on to justify her interdict application against the State related to former president Zuma's "unlawful" private prosecution of President Ramaphosa. The prosecution against Mapisa-Nqakula is not unlawful, he says.

Gwala adds that Mapisa-Nqakula is essentially trying to dictate the terms of her own prosecution to the State - something he says would set a very dangerous precedent, if it is allowed.

-Karyn Maughan

Gwala is clearly unconvinced that Mapisa-Nqakula and her lawyers have shown that she needed to urgently interdict the State from arresting her - rather than waiting for the timeframes that they had previously set out in their application filed on Friday. He says their decision to force the State to respond to the case today is "an abuse of process". 

-Karyn Maughan

Gwala stresses that the NPA never threatened to arrest Mapisa-Nqakula. Instead, he says, the State asked her to hand herself over to the authorities at a police station (with her lawyers) and then to appear at court. This is a "procedural step", he adds. 

-Karyn Maughan

Gwala tracks the history of the NPA's efforts to contact Mapisa-Nqakula and to seek her presence at her first court appearance for corruption.

Mapisa-Nqakula was first contacted by an ID investigator on 8 March - and informed about the decision to prosecute her had been taken on 9 March. 

-Karyn Maughan

Potterill agrees that accused persons are entitled to legal representation, but "not to specific legal representation".

-Karyn Maughan

Kerr-Phillips concludes. NPA counsel Makhosi Gwala SC now argues that Mapisa-Nqakula has failed to argue that she will not be able to get substantial redress in the normal course of events.

He asks if it is in the interests of justice for the NPA to be forced to do its work in accordance with the timetables of a defence attorney, as the State contends Mapisa-Nqakula is trying to force it to do.

-Karyn Maughan

Kerr-Phillips says the "judicial peek" by Potterill is particularly justified by the fact that the case against Mapisa-Nqakula is built on the evidence of a section 204 witness - someone who is implicated in the crime that they testify about. 

-Karyn Maughan

Kerr-Phillips stresses that the purpose of arrest is "only" to secure the presence of an accused person in court. It's not to "humiliate" or "punish" an accused, he adds. 

Like Willis, he argues that the state wants Mapisa-Nqakula to implicate herself when she subjects herself to what they contend is an "unlawful arrest".

He again argues that Potterill should have a "judicial peek" at the evidence against Mapisa-Nqakula. And what would happen if she had a peek and said "arrest", the judge asks. Kerr-Phillips argues she should not do so - as there is no counter-application for this relief by the State. She responds that this would be "an exercise of my discretion". 

-Karyn Maughan

Kerr-Phillips argues that police standing orders make it clear that "arrest is a last resort" to bring a person before a court. 

-Karyn Maughan

Kerr-Phillips argues that the state admits that Mapisa-Nqakula has a right to be presumed innocent until proven guilty, but contends that its decision to arrest her shows that they are not according her that right.

Potterill responds that she does not understand this submission as it would imply that "no one would ever be arrested".

-Karyn Maughan

Potterill is clearly unhappy about Mapisa-Nqakula's argument that she should take a "judicial peak" at the evidence that the State says justifies the corruption case against the Speaker.

She asks what she should do then: take over the role played by the National Director of Public Prosecutions? 

-Karyn Maughan

Advocate Graham Kerr-Phillips is now arguing about the issue of arrest.

He begins by arguing that the State has made a number of significant "concessions" in response to Mapisa-Nqakula's application.

He says the State's submissions that it won't oppose bail for Mapisa-Nqakula, as she was not a flight risk, in fact bolsters her case that she should have been summonsed to appear in court - and should not be arrested. 

-Karyn Maughan

Willis now tells Potterill that Mapisa-Nqakula's lawyers are "certain that the State is intercepting our communication". The State has denied this.

Willis further argues that Mpisa-Nqakula has a right to not have her vocation as Speaker "imperilled" by a potential arrest.

-Karyn Maughan

Potterill is clearly losing patience. She urges Willis to move on.

-Karyn Maughan

Willis argues that Mapisa-Nqakula's constitutional rights are "already being infringed".

He relies on Judge Roland Sutherland's ruling on President Cyril Ramaphosa's successful application to interdict the private prosecution summons issued against him by former president Jacob Zuma to bolster the case for Mapisa-Nqakula to be granted an interdict against the State.

This ruling was, however, delivered in relation to a private prosecution where there was zero evidence that Ramaphosa had even committed a crime - not a prosecution instituted by the State, which says it has a "strong" case against the Speaker. 

-Karyn Maughan

Potterill tells Willis that he has been arguing for 45 minutes and says she will give Mapisa-Nqakula's legal team a further 30 minutes to complete their arguments. 

-Karyn Maughan

Willis lists the reasons why Mapisa-Nqakula's lawyers argue that she should not be arrested - including that she won't harm herself or potentially be harmed by anyone else and won't interfere with witnesses.

-Karyn Maughan

Willis is suggesting that the NPA has unreasonably refused to provide Mapisa-Nqakula with an undertaking that they won't arrest her, pending her 9 April interdict application against the State.

He again accuses the State of "leaking" information to the media, which he says knows more about the case against the Speaker than she does.

Potterill asks how this is relevant to Mapisa-Nqakula's case. He responds that - given the alleged leaks of the evidence against Mapisa-Nqakula - the State cannot withhold the evidence it has against her.

-Karyn Maughan

Willis argues that Mapisa-Nqakula has the same rights as everyone else, but adds that she has a "reputation, more than most". He adds that she has a "good reputation". 

-Karyn Maughan

Willis again stresses that the ID's claims that Mapisa-Nqakula had agreed to hand herself over on Wednesday is "disputed". She has claimed that she was pressurised to hand herself over on Wednesday, but refused to do anything without her attorney.

Willis argues that investigators were "trying to strong-arm" the Speaker. 

-Karyn Maughan

Willis denies the State's accusations that May has been delaying the progress of the case against Mapisa-Nqakula, as claimed by the State.

-Karyn Maughan

Willis is now suggesting that the ID's search and seizure of Mapisa-Nqakula's home was unlawful, because her lawyer was not present when it happened.

Potterill asks him if he's pursuing any relief in relation to that claim. No, he says.

-Karyn Maughan