In about a week, Nosiviwe Mapisa-Nqakula will likely know her fate in her R4.55m corruption and money laundering trial, after her lawyers argued that the State’s evidence was too weak to sustain the case against her.
Former defence minister Nosiviwe Mapisa-Nqakula believes the State’s corruption and money laundering case against her is weak and should not continue, as it relies heavily on one witness whose evidence was contradicted, and on WhatsApp messages whose reliability cannot be confirmed.
On Monday, Mapisa-Nqakula’s legal team asked the Gauteng Division of the High Court in Pretoria to discharge her under Section 174 of the Criminal Procedure Act, arguing that the State had failed to present enough evidence for her to be convicted.
At the heart of the application is businesswoman and SANDF contractor Nombasa Ntsondwa-Ndhlovu, who the State alleges paid about R4.55-million in bribes to Mapisa-Nqakula while she was defence minister.
The defence argues that even though the State has presented evidence about money allegedly changing hands, it has not shown what Mapisa-Nqakula was supposed to do in return.
“There is absolutely no evidence at all by Nombasa that she paid the money to the accused in order for the accused to do anything or not to do anything or something to benefit Nombasa or any other person,” Siyabulela Mapoma SC argued.
During the course of the trial, Judge Mashudu Munzhelele appeared to be taken aback by Ntsondwa-Ndhlovu’s admission that she paid Mapisa-Nqakula millions, asking, “Did you pay because you were expecting to gain favours from the accused?”
Mapisa-Nqakula faces 12 counts of corruption and one count of money laundering relating to her tenure as defence minister between 2016 and 2019. She has pleaded not guilty.
The defence argued that proving corruption required more than proving that money was paid, and that the State must show that the money was given and received in exchange for a particular action or favour.
“The element of intention by both the giver and the alleged recipient of the various amounts has simply not been established…One of the elements of the offence is lacking,” Mapoma said.
‘All the witnesses contradicted her’
The defence also questioned the reliability of Ntsondwa-Ndhlovu’s evidence, describing her as the key witness on the alleged payments.
“All the witnesses that were called by the State contradicted her in material respects,” the defence submitted.
The defence argued that while the law allows a person to be convicted on the evidence of a single witness, courts must be especially careful when dealing with such evidence.
This caution was even more important in Ntsondwa-Ndhlovu’s case, the defence argued, because the State had indicated that she was a Section 204 witness and, as such, it was important for the court to treat her evidence with caution.
“There is a need to be cautious in evaluating the evidence of a single witness, particularly one seeking indemnity,” Mapoma argued.
State prosecutor advocate Emile van der Merwe, however, said all witnesses had given an honest account of what they observed and their evidence could therefore be relied upon by the court. It rejected the defence’s argument that the Section 204 witness-immunity process was relevant to Mapisa-Nqakula’s Section 174 application.
Defence questions WhatsApp evidence
Mapisa-Nqakula’s lawyers also took aim at the WhatsApp messages the State relied on to support its case. They argued that some of the messages had been deleted by Ntsondwa-Ndhlovu before they were presented as evidence.
The people who allegedly copied the messages from her phone were also not called to testify. “Some of the messages were deleted by Nombasa herself before the messages were presented as evidence,” the defence said.
“The people who purportedly copied the messages from her phone did not testify; the authenticity of the messages cannot be confirmed.”
The defence also questioned whether the State had independently confirmed the calls allegedly made between Mapisa-Nqakula and Ntsondwa-Ndhlovu. “There is a lacuna in the evidence,” the defence argued.
“The alleged communication between the accused and Nombasa was made through cellphones. There is no independent verification of the alleged calls made, whether by Nombasa or the accused.”
The defence pointed out that while the State had presented WhatsApp messages and screenshots, there were no WhatsApp call records. It also argued that the deletion of some messages and the absence of call records made it difficult to know whether the messages accurately reflected the conversations between the two women.
“The sanitisation of the WhatsApp messages … and total absence of WhatsApp calls and/or cellphone calls is telling.”
“Most importantly, it shows that the screenshots are not reliable evidence to link the demands for money with what is contained in the screenshots,” Mapoma argued.
‘Deliberate misleading’ of the court
The defence also accused Ntsondwa-Ndhlovu of presenting some of the messages in a misleading way. “There is a deliberate misleading of the court by Nombasa regarding the messages,” the defence argued.
The defence said she had tried to get the court to read some messages out of context and had left out certain words, changing their apparent meaning.
The lawyers also attacked evidence about alleged codes that Ntsondwa-Ndhlovu said were used when discussing money.
‘Total fabrication’
“The alleged codes for the payment of money were a total fabrication,” the defence submitted.
The lawyers argued that Ntsondwa-Ndhlovu gave different explanations for the meaning of the alleged codes as her evidence continued, pointing to what the defence regarded as a contradiction in the way the same words were interpreted.
“What is even more preposterous is that when Nombasa used the same words in the messages, the words did not mean any code, but when the accused used the same words … they meant a code,” Mapoma argued.
State prosecutor Van der Merwe rejected the defence’s argument that the codes did not refer to money. “If there were no codes, and if the codes did not mean money, why did the accused not return the monies paid to her?” he asked.
Van der Merwe further argued that Mapisa-Nqakula was the only person who could answer that question and should therefore be required to present her defence.
“The only one who can answer this is the accused, and therefore she has to be placed on her defence,” he said.
No independent witness to alleged payments
Another key argument was that Ntsondwa-Ndhlovu was the only person who allegedly witnessed the handing over of money to Mapisa-Nqakula.
The defence acknowledged that the law allowed a conviction based on the evidence of a single witness. But, it argued, this did not mean that such evidence should automatically be accepted.
“Nombasa was the sole witness regarding all the allegations that money was handed to the accused,” the defence submitted.
The defence said the other State witnesses who testified about the payments had not personally seen the money being handed over.
“All the other witnesses who testified about the giving of the money heard that from Nombasa. The source of the hearsay evidence was Nombasa,” the defence argued.
This, the defence said, meant there was no independent evidence confirming Ntsondwa-Ndhlovu’s account.
‘No reasonable court might convict’
The defence’s argument ultimately comes down to whether the State has presented enough evidence for the case to continue. The defence argued that Section 174 did not mean there must be “no evidence at all” before an accused could be discharged.
Rather, the defence said, the question was whether there was enough evidence on which a reasonable court, acting carefully, could convict.
“It is submitted that the evidence presently before court is not enough to sustain a prima facie case,” Mapoma argued.
“No reasonable court, acting carefully, might convict on it.”
Although the State argued that it had presented sufficient evidence for Mapisa-Nqakula to be called upon to present her defence, Van der Merwe acknowledged there were inconsistencies in the evidence of some State witnesses.
“The State takes cognisance of certain inconsistencies between the evidence of witnesses,” Van der Merwe said, but argued that these should not be viewed in isolation.
The court is expected to deliver judgment on the Section 174 discharge application on Monday, 7 September 2026. DM
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