As speaker Nosiviwe Mapisa-Nqakula sat among her global peers at a United Nations conference in New York on March 12, top of her mind would have been a text message she received the day before from a police investigator who told her that she had to appear in court the next day to face charges of corruption.

The NPA revealed in an affidavit to the court that a decision to prosecute Mapisa-Nqakula for alleged corruption was made on March 10 upon completion of its investigations.  Eight days later, investigators raided her home where documents and a wig she allegedly received as a bribe were seized.

Mapisa-Nqakula is facing 12 counts of corruption, worth R4.5m, for allegedly soliciting and receiving bribes from a service provider while she was defence minister.

The NPA argued in the Pretoria high court on Monday that Mapisa-Nqakula’s application was part of her efforts to frustrate efforts to bring her to court to answer to graft charges. 

Adv Makhosi Gwala SC argued that Mapisa-Nqakula's application was an abuse of court processes.

"We could have gone and arrested [her] but we chose not to do that and we said let's do it in a seamless way, which is less invasive.  All we want is so that the court can fix bail. The applicant wants to frustrate us in the performance of our statutory function," Gwala said. 

"Is it in the interest of justice that the NPA should work on the convenience and timetable set by an attorney in a simple matter that is not a trial? It is just a simple matter of handing over your client so that they can be processed and appear in court."

However, Mapisa-Nqakula's advocate, Reg Willis SC, said the state is infringing on his client's right to choose her own legal representative. 

"What the prosecution is doing is acting within the law, but the applicant has her own preferences on how this process should be undertaken," Gwala said. "If we were to allow that [choosing when she should be processed], we are going to have a huge problem." 

He said no one could claim the right not to be arrested and that if that were to happen the majority of South Africans would also say when and how they should be arrested. 

Gwala also argued that the law knows no positions. Gwala stressed that Mapisa-Nqakula should be processed, appear in court and be dealt with in terms of the law.

However, Willis argued that the NPA carried out the search and seizure at his client's home without her lawyer being present. He also accused the NPA of leaking information to the media regarding the case, which the NPA has strongly denied.

"Her constitutional rights have been infringed already. We are showing the court that they are acting unlawfully against our client and are not acting in good faith," Willis said.

Mapisa-Nqakula's other advocate, Graham Kerr-Phillips, argued that his client's arrest would be unlawful because the NPA intended to use a section 204 witness – an accused person who turns state witness.

An affidavit by deputy director of public prosecutions Bheki Manyathi reveals that they first made contact with Mapisa-Nqakula on March 8. At the time Mapisa-Nqakula had been travelling from France to the US and could not discuss the matter. 

When she eventually spoke to lead investigator Dylan Perumal the following day, she was informed that a decision to prosecute her had been taken. 

According to Manyathi, she told Perumal that she would send him her lawyer’s details for further communication. 

On Monday, the 11th, Perumal texted her saying she urgently needed to provide her lawyer’s details as the NPA needed to secure her appearance in court on Wednesday March 13.

At the time, Mapisa-Nqakula was leading a parliamentary delegation to the UN entity for gender equality and the empowerment of women (UN-Women). 

What would follow are days of back-and-forth negotiations with her lawyer Stephen May which ultimately resulted in an application to interdict the police from arresting her.

In its affidavit, the NPA argued that Mapisa-Nqakula did not have a right not to be arrested. "No such right exists in law. The case against the applicant is strong. On the basis of information available to the state the threshold in terms of the provisions of section 40 of the Criminal Procedure Act has been met," the affidavit reads.

Manyathi also rejected claims by Mapisa-Nqakula that the NPA had planned to have her arrested without a legal representative.

"...If the investigators had any intent of not cooperating with the applicant, they could have arrested her then, but they did not. They did, however, in the presence of the attending lawyer, advise her of the process that would unfold the next day being 20 March 2024, which included surrendering herself at Lyttelton SAPS where she would be processed, charged officially according to police standards and be taken to court immediately where the matter would be placed on the court roll and the bail hearing would have taken place unopposed."

 According to the NPA, May asked why his client was not being issued with a summons to appear in court. He was told that the Hawks did not consider it appropriate to enroll her by summons given the seriousness of the matter.

Manyathi details how Mapisa-Nqakula allegedly received the bribes between December 2016 until July 2019 in different locations in Gauteng.

Judgment has been reserved.