The Mess Deepens

We have reported before on developments in relation to the suspension of the National Head of the Hawks. The current position is that the suspension has been found unlawful in the courts. Instead of reinstating the Head, the Minister of Police, Mr Nkosinathi Nhleko, has chosen to negotiate a retirement package with him. It has been reported that the negotiation has reached a successful conclusion. Moreover, the Head of the Independent Police Investigative Directorate (IPID), Mr Robert McBride, has also been suspended recently.

In the meantime, the Minister has taken another action. On 23 February 2015 the Minister of Police approached Werksmans Attorneys (a private law practice) to investigate: 

• Who [sic] and under what circumstances was the original report altered or how the second report came about, with both reports signed by the same person;
• Whether any misconduct or offence was committed and, if so, by whom;
• Whether there is prima facie evidence of misconduct and criminal liability by Lieutenant-General Dramat, Major-General Sibiya and any other officers mentioned in the original report;
• The circumstances under which the IPID Reports and the docket were handed to the NPA and what happened to the docket whilst in the NPA’s possession;
• Any other matter that might come to Werksmans attention during their investigation which are relevant to their conclusions and findings.

The task was to be completed in two weeks. In the event, we understand that the investigation report was signed by Werksmans on 24 April.

The Parliamentary Portfolio Committee on Police is reported as inviting the Minister of Police to discuss the McBride suspension and the Werksmans Report. As indicated below, we believe that he will have some explaining to do. But first, some background.

The incident behind all these developments is the alleged rendition of Zimbabweans in 2010. The matter was investigated by IPID and two case investigative reports were compiled by IPID. The first, dated 22 January 2014, was signed by Mr H I Khuba, Acting Provincial Head, IPID: Limpopo. The second, dated 18 March 2014, was signed by Mr H I Khuba, in the same capacity as before, Mr M Sesoko, Acting Chief Director: Investigations and Information Management, IPID National Office and Mr R J McBride, Executive Director: IPID. There are differences in the reports, notably in findings about prima facie evidence against various people, including Lieutenant-General Dramat and Major-General Sibiya.  

In our view, it was entirely inappropriate – indeed probably illegal – for the Minister of Police to commission an investigation into a matter which was already before the National Prosecuting Authority. The Minister of Justice, not the Minister of Police, has responsibility for the NPA and even he cannot intervene in a decision by the NPA about prosecution in any matter, except to ask for progress reports. We therefore believe that the Werksmans report should never have been commissioned or written. The Minister cannot rely on it to justify any of his actions. 

Section 7 of the IPID Act deals with the Executive Director’s duties and functions. Section 7(4) states:

The Executive Director must refer criminal offences revealed as a result of an investigation, to the National Prosecuting Authority for criminal prosecution and notify the Minister of such referral.

Nowhere in the Act is the authority to refer given to any other person. The status of the first report, not signed by the Executive Director, or any person acting in his capacity, as a valid report to the NPA is therefore open to question.  

Moreover, the Minister of Police, in a submission to the North Gauteng High Court on 15 January 2015, stated that:

• [the IPID report] has been submitted to the National Director of Public Prosecutions by IPID for a decision and further investigation;
• The IPID has said that the matter is still under investigation.

Notice the singular in the first point. Notice also the contradiction between the two points. So what was in the Minister’s mind when he filed the submission? How does it square with his later actions?

Under the circumstances, the following questions are pertinent:

1. Was commissioning of the Werksmans report a last-ditch effort by the Minister of Police to salvage a situation in which court judgements went against him and when he failed to act in accordance with these judgements?
2. By what authority were documents removed or copied from the NPA and given to Werksmans between February and April 2015?
3. Did Werksmans confine its activity to consideration of documents or did it additionally conduct an inquisition of witnesses?
4. Was the action taken by the Minister of Police in commissioning the report legal?  Did the Minister avoid usurpation of the NPA’s functions? If the answer to either of these questions is no, what are the implications for the Minister’s fitness for office?
5. Does, or will, the payment to Werksmans constitute fruitless or irregular state expenditure?
6. Have the Minister of Police’s actions since December 2014 placed political pressure on the National Prosecuting Authority to reach decisions in accordance with the Minister’s preferences?

We hope that these issues will be pursued with vigour by the Parliamentary Portfolio Committee on Police. There are issues for the Parliamentary Portfolio Committee on Justice as well.

Francis Antonie - Director - francis@hsf.org.za - 083 408 7943
Charles Simkins - Senior Researcher - charles@hsf.org.za
Chris Pieters - Legal Researcher - chris@hsf.org.za