Referred to as: PRECCA · Prevention and Combating of Corrupt Activities Act
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Advocate Serunye sent an email on 6 August 2025 to the team members with queries and later amended the charge sheet reducing counts to two including conspiracy under section 21 of the Prevention and Combating of Corrupt Activities Act 12 2004 (PRECCA).
“ADV SERUNYE”
Advocate Serunye expresses frustration that responses to questions about the allegation of gratification involving Ms Mokwele are evasive and not supported by evidence.
“Instead of providing me with answers, I am provided with a citation of PRECCA. I know what section 1, 2, 3, and 24 of PRECCA say. I do not want to sound critical, but reference to section 24 is misguided and misunderstood. ... Why are we saying it is a gratification? They do not provide me with the evidence.”
The corruption charge against the Generals and Ms Mokwele is defective and liable to be challenged as it does not comply with PRECCA and the Criminal Procedure Act.
“I concluded that the corruption charge, as it stood, was defective and did not comply with the definitional elements of PRECCA and was liable to be challenged in terms of section 85 of the Criminal Procedure Act.”
Gratification charges under PRECCA require that the gratification must be followed by some other act, which was missing in this case, thus making the charge unsustainable.
“You said there is no PRECCA offence here because after gratification, or rather gratification must be given, and then you said in brackets or inverted commas, in order to. And you said because the in order to is missing, you cannot sustain a charge under PRECCA.”
IDAC's mandate includes investigating and prosecuting serious, high-profile, or complex corruption and related commercial or financial crimes, as well as related common law offences including fraud, forgery, theft, and offences involving dishonesty.
“IDAC's mandate, as I understand it, is to investigate and where sufficient evidence of criminality is established to prosecute matters of serious, high-profile, or complex corruption and related commercial or financial crime. Asset out in section 7 of the NPA Act, the mandate extends to related common law offences, including fraud, forgery, uttering, theft, and any offence involving dishonesty and related to offences including contravention of PRECCA, POCA, PFMA, and the Local Government Municipal Financial Management Act, the Financial Intelligence Centre Act.”
There was a charge of gratification against Ms Mokwele under PRECCA, but no factual basis was provided by Mr Adams or in his affidavit supporting that charge.
“Page 183 of 203 have charged with an offence of gratification as defined in PRECCA. And it comes from, but there are no facts alleged by Mr Adams. There are not. Not in his section 27. Not in the affidavit, that paragraph 2 that speaks only about Ms Mokwele's appointment.”
The exercise of investigative powers to charge gratification under PRECCA was done without proper consideration and facts, suggesting it might be an arbitrary use of power potentially for ulterior purposes.
“the exercise of the power to investigate and to charge an offence of gratification under PRECCA was exercised without proper consideration, without facts placed properly, and I underline properly, placed before you and the prosecutor... it is a use of investigative powers for ulterior purposes.”
General Khumalo states that gratification itself is not an offence, but gratification in order to do something improper is the offence.
“My reading of PRECCA is that gratification itself is not an offence . It is gratification in order to do something . That is the offence .”
The charges against the accused are based mainly on the PRECCA legislation but also include other legal frameworks such as the Criminal Law Amendment Act.
“You place reliance solely on PRECCA for these charges because that is the only legal framework you are discussing... it is not the only one... you also rely on the Criminal Law Amendment Act...”
The chargesheet relies extensively on the Prevention and Combating of Corrupt Activities Act (PRECCA) sections defining gratification, corruption, and related offenses.
“Your rely extensively on PRECCA, the Act, and you actually unpack the provisions of PRECCA at page 2427... And you quote the provisions of section 3. At 2430, the provisions of section 4. And at 2432, the provisions of 26(1). So those are the sections that you rely onto culminate in the chargesheet at 2433, which charges against the seven are more or less similar...”