Following Angelo Agrizzi’s unmasking week-long evidence at the Zondo Commission on Allegations of State of Capture, Fraud and Corruption in the Public Sector including Organs of State, a television news channel (eNCA) put out a poll question on Twitter in the following terms:

“Shocking revelations have emerged of how Bosasa apparently paid off dozens of people every month to secure contracts and win political favour. The allegations have been made by Angelo Agrizzi, who has turned state witness.

Should Agrizzi be shielded from prosecution?”

Agrizzi is a former Chief Operations Officer at Bosasa and self-styled “Jack of all trades”. He made damning allegations of rampant criminality at the Zondo Commission implicating not only a motley crew of Bosasa executives, senior officials of the ruling party, the State President’s son, and employees of some State Owned Enterprises, but also himself.

But the phrasing of the poll question raises a number of questions.

First, that question can only be anchored in the provisions of s 204 of the South African Criminal Procedure Act, 51 of 1977 (the CPA). That is the provision that deals with immunity from prosecution of a person who, having participated in criminal conduct, turns state witness. However, that person must testify “frankly and honestly” against other participants to the presiding Judge’s satisfaction.

I have to ask the question: Did the eNCA consider the section before putting out this poll? If they did, do they understand it and its implications? If they do, one would be tempted to question whether there is some unexpressed intention for phrasing the question in this way. Or could it be sheer carelessness or lack of application of mind?

Second, s 204 applies in respect of criminal proceedings, not a Commission of Inquiry. The poll question tells us that Agrizzi “has turned state witness”. Usually a state witness emerges after investigation has been concluded and criminal proceedings are imminent or underway. So, when were criminal investigations into Agrizzi’s damning allegations concluded? When did criminal proceedings commence? When did Agrizzi turn state witness in those proceedings? Who are the accused in those proceedings?

The facts underlying this poll leave these questions unanswered.

Quite apart from the questions that this phrasing of the poll question raises, it concerns me that the poll itself is either mischievous or reckless for a number of reasons.

First, because the “facts” underlying the poll question do not say anything about pending criminal proceedings arising from Agrizzi’s evidence at the Zondo Commission, the average reader may therefore inadvertently be left with a false impression that Agrizzi gave evidence “as a state witness” at the Zondo Commission. But there are no state witnesses at Commissions of Inquiry. There are just witnesses who must all be treated equitably. A Commission of Inquiry is not criminal proceedings; evidence leaders are not prosecutors; the Commissioner is not sitting as a Judge. [See opinion on Commissions of Inquiry]

Second, there are media reports that the National Prosecuting Authority has recently confirmed that criminal investigations into the Bosasa case have been concluded following a referral from the Special Investigating Unit some 10 years ago. If these reports are true, and Agrizzi has indeed “turned state witness” in criminal proceedings that relate to those investigations, then s 204 is triggered.

Third, what that means is this: (1) Agrizzi will be obliged to answer all questions put to him by the prosecutor, the court and the accused “frankly and honestly”. These are the words used in the CPA. (2) If he answers all questions “frankly and honestly”, to the satisfaction of the Judge presiding, he MUST be granted immunity from prosecution for the offence/s specified or related offence/s. (3) The state does not have a choice on the matter. (4) If Agrizzi testifies “frankly and honestly” to the Judge’s satisfaction, but the state does not grant him immunity from prosecution, then his evidence will not be admissible against him at any trial on the offence/s specified or any related offence/s.

So, why did the television news channel phrase the poll question in the manner that it did?