Was there valid authorisation to prosecute former Mpumalanga prosecutions boss Matric Luphondo for corruption and defeating the ends of justice?
This was the concern Luphondo's lawyer raised in the Gauteng High Court in Pretoria, where a trial-within-a-trial was supposed to continue on Wednesday.
The trial-within-a-trial is being held to determine the admissibility of evidence obtained in a sting operation in which Luphondo was allegedly caught bribing a prosecutor.
However, defence advocate Danie Dörfling, SC, raised the authorisation issue instead.
He told the court that the written letter of authorisation and an indictment signed by the Director of Public Prosecutions were necessary to institute a prosecution.
There appeared to be no such authorisation in Luphondo's case, he added, and the Director of Public Prosecutions (DPP) did not sign the indictment. Only a deputy director signed it.
He argued that it meant the State had no title to prosecute Luphondo and that if his argument was accepted, it would be fatal for the proceedings.
Judge Anthony Miller asked why the issue wasn't addressed before Luphondo pleaded to the charges.
Dörfling responded that the defence accepted the authority to institute the prosecution at face value. However, while enquiring about issues relating to the trap, they realised there might have been non-compliance.
State advocate Barry Roux, SC, first said that if an indictment is signed, it constitutes authorisation of prosecution.
He later handed up a letter of authorisation to institute the prosecution against Luphondo.
Dörfling contested the validity of the letter because it was signed on behalf of the chief clerk and not on behalf of the DPP.
Miller suggested that the trial-within-a-trial continue pending the issue, but Dörfling was adamant that it needed to be ironed out.
Luphondo and his co-accused, former head of the Mpumalanga human settlements department Kebone Masange, face charges of corruption, defeating the ends of justice, and conspiracy to commit corruption.
It is alleged that Luphondo and Hawks official Ayanda Plaatjie bribed a senior state advocate, Andrew Mphaga, to withdraw a case Masange involving allegations of fraud and the contravention of the Immigration Act.
Masange was accused of being in South Africa illegally and using fraudulent documents in his application for the head of department position at the Mpumalanga human settlements department.
According to the State, Luphondo allegedly called the prosecutor on 18 March 2021 and requested a meeting at a McDonald's eatery in Arcadia, Pretoria.
There, Luphondo reportedly told the prosecutor that Masange was willing to do anything to get out of the case and that they should help him.
Five days later, Luphondo allegedly met up with the prosecutor and handed him an 18-year-old bottle of Glenfiddich whisky, valued at R1 550, and R5 000 in cash.
He allegedly also told Mphaga there would be more. Plaatjie, it is alleged, contacted the prosecutor four days later to ask to meet him in Pretoria, where he allegedly handed the prosecutor R28 000 in cash.
Luphondo and Masange pleaded not guilty to the charges. Plaatjie, died in 2021.