CARMEL RICKARD: Is this how a Gupta trial could be handled?

For a preview of how the courts in SA might handle a Gupta corruption trial, consider the case of Fanping Wang and his colleague Li Lei.

They are in jail after being convicted of corruption by the regional court in Rustenburg, and their story has come to light with an appeal judgment by two judges of the high court in Mahikeng.

The story begins with an international mining and machinery exhibition held in SA in September 2016. Among the exhibitors was the Shanghai Xiang Mining Machinery Equipment Company from China. Wang was part of the company delegation and Lei was a freelance interpreter.

The appeal judges said SA’s courts regard corruption offences in a very serious light

Staff of Glencore in Rustenburg were keen to know about the company’s machines, so members of the delegation, including Wang and Lei, visited Glencore’s operations in the town. Wang then invited Glencore manager Patrick Magee and his family for dinner at a restaurant.

"In the course of socialising, the invitees were given gifts and included in the gifts were red envelopes with monetary donations to the value of US$5,000," says the judgment. That was just over R70,000 at the time.

After dinner Lei, the interpreter, spoke to Magee on behalf of Wang and the company, offering him commission of 5% on each machine supplied to Glencore with a minimum value of $300,000. When Magee said he was not happy with the commission promised, it was upped to 10%.

A few days later they met again and discussed the proposed commission. To facilitate Magee’s help in influencing Glencore management to buy machines from their company, they gave him a credit card in someone else’s name to use for his personal benefit and to cover his expenses.

On September 23 2016, Magee invited them to a meeting to finalise arrangements. But the police, briefed by Magee, were waiting and both men were arrested.

More than R12m could have been involved in the machinery deal.

The court, having convicted them both, sentenced Wang to 10 years on the first count of corruption and five on the second, to run concurrently. Lei got two five-year sentences, also running concurrently.

The two complained that the trial court did not give enough weight to the fact that they thought it appropriate to behave as they did because of their background culture, tradition and beliefs. The court should also have appreciated that the credit card could never actually have been used because of the difference in names.

‘Tokens of hospitality’

Wang and Lei’s legal team said that "giving envelopes amounted to giving tokens of hospitality and generosity in the pursuit of their tradition and culture called guanxi". The money was to make sure that everyone should feel welcomed, even those with no influence over the tender process. "It was much like buying a round of drinks," they said.

Wang and Lei’s moral blameworthiness was substantially reduced, argued their lawyers, but the court’s sentence did not appear to reflect this. They had already been in jail for more than a year, and should be given a suspended sentence instead.

However, the two appeal judges said SA’s courts and legislature regard corruption offences in a very serious light "and that is why they attract minimum sentences. Not only is ... corruption very serious, but it is an insidious crime ... difficult to detect and more difficult to eradicate". That is why trapping suspects is legalised in SA.

The judges found there was nothing "grossly or shockingly inappropriate" about the sentences handed down in the case, and they dismissed the appeal.

Just think: 10 years for a small-scale bribe in a red envelope and a credit card that apparently would never have worked. I can’t wait for a Gupta trial!