INDEPENDENT STATE INSTITUTIONS SHOULD BE SUPPORTED IN FIGHTING CORRUPTION
JOHANNESBURG, 17 May 2016 – The Constitutional Court today heard arguments in the application by Mr Robert McBride, the suspended Executive Director of the Independent Police Investigation Directorate (IPID).
McBride is seeking an order from the Court to confirm a previous judgment by the Gauteng Division of the High Court, Pretoria regarding the independence of IPID, that would determine whether or not the Minister of Police has the constitutional power to institute disciplinary actions against the head of IPID. Such actions include the right to suspend or terminate the contract of the Executive Director of IPID.
McBride was suspended by Police Minister Nathi Nhleko on 25 March 2015. Judgment has been reserved.
McBride’s petition to the Court concerns the principle of protecting independent State institutions. Since the latter part of 2014, we have seen, in quick succession, the removal of high-ranking state officials who had previously served government with distinction. These officials had built public trust in the institutions they led. (Please see the list and details of affected officials, attached to this statement below).
The events at the Directorate for Priority Crime Investigation (DPCI or the “Hawks”), IPID, the South African Revenue Service (SARS), Crime Intelligence in the SAPS, the State Security Agency, Denel and the National Prosecuting Authority (NPA), are not unrelated. There appears to be a remarkable coincidence in the methods used to remove officials from these institutions, the players involved and their intersecting interests.
In our view, attacks on individuals in these institutions are aimed at undermining the fight against corruption. A key part of all of our mandates was to investigate cases of corruption. In reviewing our individual experiences over recent weeks, we have discovered a convergence in the cases that we were working on. A common thread is that cases under investigation involved individuals or entities with questionable relationships to those in public office. Most of these cases involved state tenders of some kind that were awarded due to patronage with influential individuals in public office.
The manner in which officials were removed has followed a similar pattern. Internal documents or “allegations” from within institutions are leaked to select journalists. Working in tandem with “anonymous” sources, facts are distorted in the media.
It is unclear how the leaks happen, but they do not originate from the accused. After the information is leaked, the institution in question then launches an “investigation” into the accused officials, using news reports as pretext. The results of these “investigations” are then leaked to the same journalists again.
During the “investigations” the affected officials are suspended and prevented from defending themselves publicly. They are never called to answer to any allegations by the investigators. Any representation is usually ignored, distorted or rejected by the institution in question. The investigations are open-ended and the allegations constantly change.
When an “investigation” fails to reach a conclusion, the institutions enter into settlements with the officials. Later, based on the same allegations that preceded the settlement, officials are then criminally charged. It appears from this pattern that the intent is to hound officials out of institutions and destroy their credibility publicly.
Throughout, the affected officials are required to bear all the costs for their legal defence although the charges against them relate directly to the execution of their duties as state officials. The state, on the other hand, can rely on unlimited resources.
In all institutions cited here, the effective top leadership was removed and replaced. The replacements then institute far reaching structural and operational changes in the institutions. Often, the replacements themselves face legal challenges by public interest groups based on, either their appointments, or their subsequent actions.
Where matters have gone to court, the courts have consistently found in favour of the affected officials with cost orders against their institutions, only for them to be suspended again and investigated on a new slate of allegations. This was so in the matters of Messrs Robert McBride, Ivan Pillay, Peter Richer, Anwa Dramat, Shadrack Sibiya, Johan Booysen, and Glynis Breytenbach, amongst others.
It appears that the pattern of questionable processes has also been applied to the recent interactions of the Hawks with the Minister of Finance. They sent him 27 questions at a time when it was not feasible to answer, insisted on an unduly urgent deadline, leaked the questions to the media and excoriated him publically to answer on the pain of legal consequences. During all of this, they did not disclose what offence, if any, they were investigating or whether he was a witness or suspect.
To date, it is not clear whether the Minister of Finance was even named in the complaint that was laid with the Police by SARS in May 2015. There was also complete disregard by the Hawks for the broader consequences to the economy.
With recent judgments in the Constitutional Court and other courts, it is clear that the rule of law, rationality and the promotion of good governance in the public sector must be the cornerstone for sound public administration. The incumbents should be sensitive that the South African public is keenly aware of their duties and the limits to their authority and will not allow them to abuse it with impunity.
Corruption is the biggest threat to our constitutional democracy. This cancer has turned former comrades against each other. People who shared the same trenches in the fight for liberation are now at each other’s throats for the sake of protecting corrupt activities. We should be concerned about the escalating levels of corruption and the damage it has inflicted on our country, service delivery, our economy and especially the poor. In January this year Transparency International ranked South Africa 61 out of 167 countries in its Corruption Index. According to Global Financial Integrity (GFI), South Africa loses about R147 billion through the illicit movement of money out of the country.
We will continue to use our experience and expertise to investigate, fight and expose corrupt activities in the private and public sector. We will continue to seek legal recourse from the courts in our respective matters against state institutions.
Although the immediate objective of our defence is private, our legal actions have a bearing on the public interest. In the first instance, they are aimed at curbing our harassment and intimidation by the state. Further, our actions will bring light to the true reasons for the abuse of state resources in the manner described above.
We call on those in business, civil society, organised labour, NGOs and the general public who value and want to defend our constitutional democracy, to assist our efforts with legal advice and expertise and legal and financial resources.
Issued by Mr Robert McBride – suspended Executive Director: IPID; Ivan Pillay – former SARS Deputy Commissioner; and, Anwa Dramat – former National Head of the Hawks, 17 May 2016
ANNEXURE
Affected State Officials
Independent Police Investigations Directorate (IPID)
1. Robert McBride Position: Executive Director Appointed: 3 March 2014 Suspended:
- Precautionary Notice of Suspension – 10 March 2015
- Suspended - 25 March 2015
Reasons for Suspension:
- Altering investigation report in Zimbabwe ‘renditions’
- Removing Richard Mdluli’s device from Shadrack Sibiya’s office
- Undermining authority of the Minister of Police
Legal Actions:
Urgent Application to High Court
- To Interdict the Minister from suspending him
- Constitutional argument on IPID independence
Date: 13 March 2015 Outcome:
- No urgency on suspension argument as Minister had not instituted proceedings.
- Court ruled there may be good prospects of success on Constitutional argument.
Disciplinary Actions: Date: 26 May 2015
- Charges instituted against McBride, Khuba and Sesoko. Chairperson of DC rules that proceedings must continue.
Labour Court Application:
- Urgent application for stay of DC
- Labour Court stays DC until arguments are presented to High Court on IPID Constitutional Independence
North Gauteng High Court application – independence of IPID
Date: 4 December 2015
Outcome: High Court ruled Minister of Police contravened Constitution by suspending and instituting disciplinary actions against the head of IPID. Legislation not sufficient to protect IPID independence.
Minister of Police concedes constitutional independence – March 2016
Constitutional Court application – independence of IPID. Seeking confirmation of North Gauteng High Court order.
Arguments before Court – 17 May 2016
Criminal Charges: Date: March 2016
- Fraud
- Defeating the ends of justice
Next appearance: June 2016
2. Innocent Khuba
Position: IPID Investigations – Limpopo
Suspended: 21 May 2015 Reasons for Suspension: Legal Actions:
- Arbitration before Bargaining Council to challenge dismissal
Criminal Charges:
- Fraud and defeating the ends of Justice
Date: March 2016
Next appearance: June 2016
3. Paul Viceroy Hillary Maoko Position: Head of Legal Services, IPID Appointed: 4 August 2014
Date: 31 August 2015 – placed under precautionary transfer to Limpopo
Reasons for transfer:
- Allegations of disclosing confidential IPID information to the media
- Allegations were investigated by the State Security Agency
Legal Actions:
Date: 29 April 2016 – challenged precautionary transfer before Labour Court
- Court found precautionary transfer was unlawful
- Court ruled that Maoka should return to IPID Head Office in Pretoria in his permanent position
Notice to suspend: 9 May 2016
Suspended: 12 May 2016
Reasons for Suspension:
- Potential conflict in his position because of his role in assisting employees in disciplinary hearings of disputes
- Non-disclosure of financial interests for 2015/16 financial year
Date: 13 May 2016 – filed unfair suspension dispute at Bargaining Council
4. Matthews Sesoko
Position: National Head of Investigations: IPID
Appointed: 01 April 1997
Suspended: 21 May 2015
Reasons for Suspension:
- Altering investigation report in Zimbabwe ‘renditions’
Legal Actions:
- To apply for Stay of the disciplinary proceedings
- Date: 6 May 2016 – Internal hearing
- Date: 20-24 June 2016 disciplinary proceedings continue if Stay application fails.
- If Stay application fails he will approach the Labour Court for relief.
Criminal charges:
- Fraud and defeating the ends of Justice
Date: 18 March 2016 and 15 April 2016
Next appearance: 15 June 2016
5. Felicia Azande Ntshangase
Position: Provincial Head, Gauteng (IPID) Appointed: 1 November 2014 Suspended:
- Notice of intention to suspend 23 June 2015
- Suspension: 8 July 2015
Reasons for Suspension
- Alleged appointment of friends
- Alleged appointment of family members
- Gross misconduct
Anticipated Legal Action:
- Two cases of fraud opened at SAPS Pretoria Central
Date for Disciplinary Proceedings: 23-25 May 2016
Note: Ms Ntshangase provided a confirmatory affidavit for the McBride Constitutional Court challenge in which she confirmed that the Minister addressed IPID staff 5 days after McBride's suspension (alleged institutional interference) and also made alleged false allegations about the judiciary.
6. Nomkhosi Netsianda
Position: IPID Chief Director: Corporate Services
Date of appointment: 1 April 2012
Notice of intention to suspend: 6 August 2015
Suspended: 19 August 2015
Note: Netsianda challenged the appointment of the daughter of Maggie Sotyu, Deputy Minister of Police, as Deputy Director: Investigations for IPID in the Free State. The candidate was appointed against Netsianda’s recommendation
Reasons for suspension:
- Disagreement with the acting Executive Director on three appointments
- “Raising her voice” at an Internal Audit meeting where the funding of the court case on IPIDs independence was discussed
- Accused of leaking information about the appointment of Ms Sotyu daughter, who allegedly did not meet minimum requirements
- “Mislead” the Acting Head of IPID for making IPID appointments
Disciplinary Hearing: 24 -25 May 2016
Legal action:
- Criminal case (leaking information about Sotyu’s appointment) has been registered with Pretoria Central SAPS
Note: Netsianda’s position has been advertised externally whilst she is on suspension
Directorate for Priority Crime Investigation (DPCI) – The Hawks
1. Anwa Dramat
Position: Lieutenant - General – National Head of DPCI
Appointed: June 2009
Date: 10 December 2014 – Notice of Suspension
Suspended:
Date: 23 December 2014
Reasons for Suspension:
- ‘Rendition’ of Zimbabwean nationals
Legal Actions:
- Date: From 2010 onwards Helen Suzman Foundation has been involved in challenging constitutionality of certain provisions of the SAPS Act, relating to operational and structural independence of the DPCI
- Date: 2011 – Constitutional Court confirms provisions of the SAPS Act are unconstitutional and refers SAPS Act back to Parliament for amendment. Parliament amends but the Helen Suzman Foundation contends that revised legislation will still not pass constitutional muster
- Date: 2012 – Helen Suzman Foundation again approaches Constitutional Court. Court again confirms that certain provisions of the amended SAPS Act are still unconstitutional. Court itself remedies the legislation in order to pass constitutional muster
- In a judgment in November 2014, the Court effectively takes away power of Minister of Police to suspend National Head of DPCI
- Date: January 2015 – Helen Suzman Foundation applies to North Gauteng High Court on an urgent basis to have Dramat suspension declared unlawful and set aside. Also challenges the lawfulness of the appointment of an Acting National Head for the DPCI
- Court declares suspension and appointment unlawful
- Dramat nevertheless resigns in March 2015Date: 11 September 2015 - Minister of Police appoints Berning Ntlemeza as (permanent) national head of the DPCI. Maj-Gen Ntlemeza has been acting national head of the Hawks since the suspension of Lt Gen Dramat in December 2014
Criminal Charges: Date: 18 March 2016
- Kidnapping, defeating the ends of justice, illegal deportation in terms of the Immigration Act
2. Shadrack Sibiya
Position: Major General – Head of Hawks: Gauteng
Appointed: 1 October 2010
Suspended: 20 January 2015
Reasons for Suspension:
- Ought to have known about “illegal renditions” of Zimbabweans in Gauteng.
- Should have prevented these
Legal Actions:
Notice to suspend (precautionary suspension): 5 January 2015
- Requested further particulars for suspension – 7 January 2015
- Challenge the legitimacy of Acting Head of Hawks
- Applied to Labour Court to restrain Acting Head of Hawks from carrying out suspension
- Acting Head of Hawks (Maj-Gen Ntlemeza) withdraws notice to suspend – 13 January 2015
- Tendered costs for the applicant and removed application – 14 January 2015
- On the same day, Acting Head of Hawks issues second notice to suspend
- Acting Head of Hawks replaces legal counsel who advised that he does not have legal basis to proceed with suspension. Appointed William Mokhari as counsel
- Representations not to suspend made by Maj-Gen Sibiya to Hawks – 19 January 2015
- Suspended 20 January 2015
- June 3 – 10, 2016: Arbitration at the Safety and Security Bargaining Council
Criminal Charges Date: 18 March 2016
- Kidnapping
- defeating the ends of justice
- illegal deportation in terms of the Immigration Act
Date: 6 June 2016
- Criminal trial set to begin before Gauteng North High Court
3. Johan Booysen
Position: Major General – Head of Hawks: KwaZulu-Natal
Appointed: March 2010
Suspended: March 2012, despite obtaining a Labour Court interdict to prevent a suspension
Reasons for Suspension:
- Investigating fraud and/or corruption related to the 2010 FIFA Soccer World Cup, including investigations into the KwaZulu-Natal Provincial Commissioner of Police, Mamonye Ngobeni
Overview:
- Started investigations into tender fraud and/or corruption in the SAPS procurement system related to the 2010 FIFA Soccer World Cup
- Interference by the KZN Provincial Commissioner of Police, Ngobeni, trying to stop investigations
- Attempted bribe of R2 million by a KZN businessman and SAPS officials from the KZN Head Office Procurement division, who arrested in a ‘sting’ operation
- Date: Sunday Times headlines the first of a series of articles about the ‘Cato Manor death squad’ in KZN, led by Booysen. SAPS Crime Intelligence involved in disinformation campaign
Legal Actions:
- Date: February 2012: Receives notice of intention by employer to suspend
- Obtains Labour Court interdict on an urgent basis to prevent suspension
- Is suspended despite Labour Court interdict
- Date: March 2012 – Urgent application to the Labour Court, which overturns suspension. Court remanded contempt proceedings against the SAPS management.
- Returns to work and is arrested (22 August 2012) and suspended again (11 September 2012)
- Date: Feb 2014 - application to the High Court in Durban which rules the State has no case and the charges must be withdrawn
- Date: March 2014 - disciplinary hearing is conducted by the employer despite Labour Court judgment
- Date: September 2014 - DC Chairperson, Adv Nazeer Cassim, SC, finds not guilty on all charges. Adv Cassim critical of National and Provincial Police Commissioners
- National Police Commissioner, Riah Phiyega offers a settlement and ‘golden handshake’
- Offer is refused
- Phiyega wants to discharge – obtains High Court order interdict against Phiyega
- Returns to work
- Date: December 2014 – asked to provide reasons for why he should not be discharged
- Date: October 2015: Acting national head of Hawks, Berning Ntlemeza, suspends
- Successfully approaches High Court on an urgent basis to have suspension overturned
- Ntlemeza seeks leave to appeal, which is denied
- Ntlemeza petitions the SCA
- Date 11 May 2016: Approaches Durban High Court – to have charges of racketeering set aside, NDPP acting unconstitutionally and abuse of power
South African Revenue Service (SARS)
1. Ivan Pillay
Position: SARS Deputy Commissioner
Appointed: 1 April 1999
Suspended: 5 December 2014
Reasons for Suspension:
- The findings of the Sikhakhane investigation, including:
-The unlawful establishment of a unit that operated ostensibly in a covert manner, has created a climate of intrigue, fear and subterfuge within SARS
-Unlawful establishment of the unit without having the requisite statutory authority
-Prima facie evidence that the unit may have abused its power and resources by engaging in activities that reside in the other agencies of Government, and which it had no lawful authority to perform
-Prima facie evidence that the recruitment, funding and practices of the unit were in violation of SARS’s own Human resources policy
-Prima facie evidence that the existence of this unit had the real possibility of undermining the work of those agencies tasked with the investigation of organised crime and the collection of intelligence
Legal Actions:
Date: 17 December 2014
- Urgent application to the Labour Court to have suspension set aside and declared unlawful
Date: 18 December 2014
- Labour Court rules that suspension was “unlawful” and “illegal” and is set aside. Pillay must return to work the following day and be re-instated in his permanent position
- SARS is ordered to pay legal costs
- Returns to work and is again immediately suspended again
Date: 7 May 2015
- Reaches settlement and resigns from SARS with immediate effect
Criminal Charges: Date: May 2015
- Criminal complaint registered by SARS Commissioner, following settlement with SARS and resignation
- Details of complaint and/or charges which are being investigated by the Hawks are not known
2. Peter Richer
Position: SARS Group Executive: Strategy Planning and Risk
Appointed: August 2003
Suspended: 5 December 2014
Reasons for Suspension:
- The findings of the Sikhakhane investigation, including:
-The unlawful establishment of a unit that operated ostensibly in a covert manner, has created a climate of intrigue, fear and subterfuge within SARS
-Unlawful establishment of the unit without having the requisite statutory authority
-Prima facie evidence that the unit may have abused its power and resources by engaging in activities that reside in the other agencies of Government, and which it had no lawful authority to perform
-Prima facie evidence that the recruitment, funding and practices of the unit were in violation of SARS’s own Human resources policy
-Prima facie evidence that the existence of this unit had the real possibility of undermining the work of those agencies tasked with the investigation of organised crime and the collection of intelligence
Legal Actions:
Date: 17 December 2014
- Urgent application to the Labour Court to have suspension set aside and declared unlawful
- SARS withdraws notice to suspend before Court proceedings begin
- SARS is ordered to pay legal costs
Date: 18 December 2014
- Informed there is no need to return to office and is immediately suspended again
Date: 7 May 2015
- Reaches settlement and resigns from SARS with immediate effect
3. Johann van Loggerenberg
Position: SARS Group Executive – Tax and Customs Enforcement Investigations
Appointed: 1 December 1998
Suspended: 5 November 2014
Reasons for Suspension:
- To allow for further investigations (details of which not specified)
Date: 4 February 2015
- Reaches settlement and resigns from SARS with immediate effect
Criminal Charges: Date: May 2015
- Criminal complaint registered by SARS Commissioner, following settlement with SARS and resignation
- Details of complaint and/or charges which are being investigated by the Hawks are not known
4. Yolisa Pikie
Position: Advisor to SARS Commissioner and Deputy Commissioner
Appointed: 28 April 2002
Suspended: 12 December 2014
Reasons for Suspension:
- Attempted theft of SARS property (SIM cards)
- Malicious damage to SARS property (SIM cards)
- Assisted Johann van Loggerenberg legally during Van Loggerenberg’s suspension
- Bringing institution into disrepute
Resigned: 2 April 2015 Legal Actions:
- None. Resigned on 2 April 2015
Criminal Charges:
- Attempted theft of SARS property (SIM cards)
- Malicious damage to SARS property (SIM cards)
- Fraud
5. Adrian Lackay
Position: SARS Spokesperson
Appointed: 1 October 2003
Suspended: N/A. Resigned on 19 February 2015
Legal Actions:
- Application for Constructive Dismissal before CCMA – due to be enrolled
- Defending against a civil claim for Defamation by SARS and SARS Commissioner for R12 million damages – heads of argument filed by all parties. Awaiting court date.
ENDS.
