“We all cannot remember the finer details of some matters. The complainant remained certain of what happened ... he never appeared uncertain on the stand”
A FORMER Kimberley Magistrate’s Court prosecutor, Anele Kohlani, has been found guilty of Section 9 of the Prosecution and Combating of Corrupt Activities Act after he accepted a bribe from an accused person.
Kohlani was arrested on April 28 2015 on charges of accepting
R1 500 from Issac Tholowane in return for removing assault charges against the latter.
Tholwane told the court that he and the complainant, who laid the assault charges against him, reached an agreement to withdraw their cases against each other while they were in police custody.
Tholwane said during the trial that he approached the Hawks and informed them about the apparent agreement to withdraw the case after the former prosecutor told him that the charges were serious and that he could face a lengthy period in prison for the offence.
He said he was afraid to go to jail and agreed to pay Kohlani the money. The money was given to the complainant by the Hawks who also gave him a wire to record the conversation during the exchange.
Kohlani denied the charges against him and said that he had loaned the money to Tholwane.
In his plea explanation, Kohlani told the court he started a money loan business on the side in an attempt to make an extra income. He said he mostly loaned money to close friends but approached people accused of drunken driving and those who had a previous criminal record as possible clients.
He said that his income was stretched as his wife was staying in Pretoria and the birth of his child brought additional financial burdens.
Kohlani said he he lent the money to Tholwane as the latter wanted to hire a lawyer to represent him in the case. He said they reached an agreement that he would pay him back during Tholwane’s next court appearance.
The State, represented by WC Engelbrecht, said Kohlani had abused his position and it was clear from his version that he was guilty of corruption.
“The accused said he loaned money to the complainant at an interest rate of 30%. That percentage is not in line with the Credit Act. He informed the complainant of the 30% (interest rate) and instructed him not to tell anyone. The accused was not registered to loan money.
“To loan money as a prosecutor was unethical and the accused was aware that he could lose his job. The accused also did not know what he would do if the complainant did not pay him back. He broke the trust between him and his employer by doing so,” said Engelbrecht.
Kohlani’s lawyer, Advocate Ferdi van Heerden, argued that the accused did not receive the 30% interest on the money and only the R1 500 he said he loaned to the complainant.
Magistrate Vernon Smith said although the complainant was a single and uneducated witness, his testimony was unwavered.
“The evidence of a single witness should be treated with caution, however the common sense of the complainant told him that something was wrong even though he did not have insight into legal proceedings,” said Smith.
He added that it was clear from the voice recording, which was played during the trial, that Kohlani had chosen his words carefully during the transaction.
“The accused is a prosecutor and assumed to be more knowledgeable in law than the complainant. The version of the accused was that he lent money to a complete stranger. He said he would just wait until the complainant’s next court appearance to get his money back.
“He did not even know when the complainant was due to appear or how he would get his money back. In the recordings, the accused never asked the complainant for the money. He never requested it throughout. He used interesting words during the recording and picked his answers carefully when he told the complainant that they must go to the office,” Smith said, adding that although there were some contradictions in the testimony of the complainant, he found it to be truthful.
“There was nothing sinister in the complainant’s evidence stating that he was approached by the accused. I can understand the frustration of the complainant when he found that the assault charge had not been withdrawn.
“The contradiction of the complainant was that he could not remember everything. That does not mean that the complainant was untruthful or that it had resulted in a negative impact on the evidence.
“We all cannot remember the finer details of some matters. The complainant remained certain of what happened … he never appeared uncertain on the stand,” he said.
Smith rejected Kohlani’s version of events, stating that the accused had no reason to go to this extent.
The matter was postponed to January next year for sentencing.