South Africa

IPID vs SAPS: Robert McBride approaches court to stop North West unit interfering with investigations

By Marianne Thamm 15 November 2017

A week after a high-ranking posse of SAPS members from North West mounted a shakedown of the Garsfontein offices of IPID’s attorneys, Robert McBride lodged a motion of notice with the Pretoria High Court seeking an urgent interdict to prevent SAPS members implicated in IPID investigations from investigating IPID investigators. McBride’s accompanying affidavit paints a damning picture of deliberate lawlessness on the part of the North West unit which appears to have been deployed as private bodyguards to protect former acting National Commissioner Khomotso Phahlane from the law itself. By MARIANNE THAMM.

Apart from the seriousness of the matter, the street addresses of the offices where this destructive offensive and counteroffensive between SAPS and IPID was launched shortly after former acting National Commissioner Khomotso Phahlane became a suspect in an IPID fraud and corruption investigation, marks this as a thoroughly modern late-Zuma era battle.

IPID’s address is 114 Madiba Street, Pretoria, while the North West unit that has been hounding IPID officials and witnesses in the Phahlane investigation occupy the Wespol Building on the corner of Nelson Mandela Drive and Peter Mokaba Street, Potchefstroom. If ever there was a case for not naming streets after Struggle heroes, this might be it.

On Tuesday IPID’s executive director, Robert McBride, lodged a notice of motion seeking that the Pretoria High Court direct current acting National Commissioner, Lesetja Mothiba, to ensure that SAPS investigations of three IPID investigators, Mandlakayise Mahlangu, Temane Binang and Mantsha Raphesu, are undertaken and overseen by SAPS members other than those currently being investigated by IPID.

Mahlangu, Binang and Raphesu are three of four IPID investigating officers who have been probing “serious complaints” against Phahlane.

All three of these IPID investigators have had criminal charges laid against them in relation to the conduct of IPID’s investigation against Lieutenant-General Phahlane,” said McBride in his affidavit to the court.

The respondents in the matter, apart from the current acting National Commissioner and the former acting National Commissioner, are North West Deputy Provincial Commissioner Major-General Jan Mabula, Provincial Head of Commercial Crimes Investigations, Brigadier Daniel Pharasa Ncube, Commander of the Special Crimes Unit, Lieutenant-Colonel Ismail Dawood, Provincial Head of Organised Crime Brigadier Matome Kgorane, Provincial Police Services Colonel SM Reddy, Provincial Commissioner Lieutenant-General Baile Motswenyane, and Minister of Police Fikile Mbalula.

Tuesday’s application was made as an ancillary to the main application pending before the court and relating to the Phahlane charges of fraud and corruption.

The current application, said McBride, was necessitated “by events over the past few days”. The IPID director was at pains to add, however, that the directorate did not seek to “bar SAPS from investigating IPID investigators” as they were “not immune from investigation, prosecution or above the law”.

But where SAPS is required to investigate IPID, said McBride, “the Constitution and the law requires that such investigations be undertaken and overseen by SAPS officials who have no personal interest in the investigations and who are not themselves subject of IPID investigations.”

McBride’s argument is that there could be no conceivable harm to the North West goon squad as a result of the court action. In fact, “It will leave the National Commissioner free to pick any investigators of his choosing from thousands of SAPS members where no such conflict would arise.”

The entire saga dates back to March 2016 when IPID, after receiving complaints from POPCRU and forensic investigator Paul O’Sullivan, initiated an investigation into Phahlane. The acting National Commissioner had been accused of tender irregularities, irregular appointments and suspected corruption.

When McBride returned to his office (after his illegal suspension) in October that year he says he found that “little progress” had been made in the investigation and he appointed a new team to investigate the complaints against Phahlane specifically.

There was, McBride explains in his affidavit, “prima facie evidence against Lieutenant-General Phahlane” involving the “unexplained source of funds for the purchase of his property at Sable Hills Waterfront Estate and construction of a large home on the property, large bond payments, the payment of constructors by means of large cash payments and Lieutenant-General Phahlane’s ownership of a fleet of vehicles.”

The source of this funding was suspicious, says McBride, because Lieutenant-General Phahlane had claimed that he had no other source of income other than his SAPS income and had not previously declared any other financial interests.

Since then IPID’s investigation against Phahlane had “faced serious and persistent obstruction from members of the SAPS”.

This included Phahlane unlawfully obtaining section 205 applications made by IPID from the Magistrate’s Court file in order to obtain details of who IPID had subpoenaed. When Phahlane became aware of IPID’s approach to witnesses, says McBride, the acting National Commissioner contacted the witnesses directly and “intimidated them and instructed witnesses not to co-operate with IPID’s investigators”.

IPID lodged a case against Phahlane on charges of defeating the ends of justice, which the NPA has subsequently declined to prosecute.

McBride sets out how he, the principle IPID investigator Mahlangu and O’Sullivan all received anonymous death threats at the start of the investigation into Phahlane. One of these messages had been traced to the phone of an SAPS officer stationed at OR Tambo International Airport.

In November 2016, the North West SAPS team, led by Major-General Mabula, began to push back against IPID’s investigation of the police chief. The motivation at the time came from SAPS Crime Intelligence division, which had alleged that there had been “security threats” to Phahlane.

The North West posse then turned on O’Sullivan. In January 2017 Mabula lodged a charge against O’Sullivan and his assistant Sarah-Jane Trent for their alleged involvement in IPID’s investigation into Phahlane.

O’Sullivan and Trent were charged with fraud, conspiracy to contravene section 33 (5) of the IPID Act, extortion, and contravention of section 18 (b) (v) of the Prevention and Combating of Corrupt Activities Act. In May SAPS added IPID investigators Bintang and Mahlangu as suspects in the O’Sullivan and Trent matter. This prosecution was struck off the role on 8 November, the day after the raid on the offices of IPID’s attorneys.

Mabula, Ncube, Dawood and Kgorane are all subject of complaints being investigated by IPID including contempt of court, kidnapping, defeating the ends of justice, torture, murder and assault GBH.

Another member of the North West team, a Colonel Reddy, is also subject of an IPID investigation. In this matter McBride sets out how, during the investigation into money laundering and corruption against Phahlane, the acting commissioner had abused his powers and, conspiring with Lieutenant BB Motswenyane, the Provincial Commissioner of North West, and Major-General MA Makhele, former Acting Divisional Commissioner Crime Intelligence, had established a “team”, led by Mabula, to “interfere” with the investigation into Phahlane.

In all of the cases under investigation by IPID, SAPS members reported to Major-General Mabula.

Some witnesses in those cases alleged that Major-General Mabula was aware of the torture and that he even ordered further torture on victims.”

McBride maintains that it is unlawful and unconstitutional for any member of SAPS to oversee or undertake a police investigation “in respect of which he or she has a personal interest” and that it is unlawful and unconstitutional for any member of the SAPS to oversee investigations into IPID “when that IPID member is investigating the SAPS member concerned”.

In June 2017 Phahlane was suspended and the prosecution in the main case had been interrupted before an exchange of pleadings. IPID had attempted to engage new acting National Commissioner Mothiba in an attempt to resolve issues and prevent the North West SAPS from interfering with investigations.

Further meetings were held between IPID and the State Attorney in an attempt to resolve the issue.

IPID had hoped that the main case would be resolved by engaging with Mothiba; however, “it has become apparent that the change in leadership at the SAPS has not resulted in a change in position on the critical principled issue in dispute – whether members of the SAPS who are being investigated by IPID are entitled, in turn, to investigate those IPID investigators.

On 9 November IPID learnt that Major-General Mabula and the North West team were continuing to investigate IPID investigators regardless of all attempts at alerting SAPS top leadership.

IPID investigator Raphesu later took up two cases involving Brigadier Ncube, Lieutenant-Colonel Dawood and Brigadier Kgorane in relation to the unlawful arrest of O’Sullivan (in contempt of a court order) as well as Trent.

It was Kgorane who had arrested Trent, cuffed her with cable ties and kept her in isolation without her rights having been explained to her in February 2017. Trent had not been presented with a warrant for arrest nor been allowed to make contact with anyone.

Ms Trent’s cellular phone was stolen and illegally tapped. The available evidence presents a case for kidnapping, theft and intimidation,” said McBride.

Raphesu is also the lead investigator in a complaint by O’Sullivan against SAPS after he [O’Sullivan] was arrested and intimidated.

The evidence shows that there is a case of fraud in respect of Mr O’Sullivan’s unlawful arrest as well as defeating the ends of justice,” said McBride.

In May IPID had sent Raphesu’s dockets to the NPA.

The Deputy DPP and the Senior State Advocate found prima facie evidence of unlawful arrest (of O’Sullivan…), kidnapping, fraud and defeating the ends of justice in respect of the arrest by Brigadier Ncube and Colonel Dawood of Mr O’Sullivan.”

There was also prima facie evidence of kidnapping, theft and intimidation of Trent. The Deputy DPP, Advocate Sibongile Mzinyathi, as well as the State Advocate, FW Van der Merwe, had advised that a prosecution “must be instituted” and could proceed immediately.

The Deputy DPP explained that while she was of the view that a prosecution should be instituted by the regional court, “I am aware and have been informed that the decision cannot be made by me and will be taken at another level of authority.

I have to make it clear that in my view a failure to prosecute will be an injustice to the complainants and the public at large. If it is decided not to proceed with prosecution for whatever reason, care should be taken that the decision will withstand the requirements for a Nolle Prosequi certificate,” said the Deputy DPP.

Despite this commitment, “It appears no steps have been taken by the DPP to institute prosecution against the implicated members of the North West SAPS,” said McBride.

He sets out what occurred on 9 November when Brigadier Ncube raided the offices of IPID’s attorney, Jac Marais, informing him that SAPS were investigating a complaint against him and were also there to take a warning statement from Raphesu.

Ncube had threatened to arrest Raphesu if he refused to co-operate, said McBride.

SAPS’s behaviour, McBride said in his affidavit, compromised the independence of IPID and had a “serious and ongoing, detrimental impact” on the effectiveness of IPID. Also, the continued investigation of IPID officers by SAPS infringed their rights to a fair trial due to the obvious conflict of interest.

As an oversight body that depends on the receipt of public complaints in its investigations, IPID cannot operate effectively without the public trust in its independence from the SAPS,” said McBride.

The ongoing harassment was also diverting the attention of the IPID team, “making it impossible to finalise the investigation into former Acting National Commissioner Lieutenant General Phahlane”.

He added that it was hard to imagine a more serious matter within IPID’s remit than the investigation of a former Acting National Commissioner for corruption and money laundering. The actions of members of the North West squad were undermining this attempt.

McBride asked the court to set shortened time periods for the respondents to file their answering papers and said that should it be required, IPID would approach the Deputy Judge President to request an expedited special allocation for the hearing of the matter. DM

Photo: Former acting SAPS National Commissioner Khomotso Phahlane (left), IPID boss Robert McBride.


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