South Africa

Mokgoro Inquiry

Witness testimony reflects on the gradual decline of the NPA

Witness testimony reflects on the gradual decline of the NPA
Deputy National Prosecuting Authority head, Advocate Nomgcobo Jiba during a media briefing on August 18, 2015 in Johannesburg, South Africa. (Photo by Gallo Images / Beeld / Cornel van Heerden). Former KZN Scorpions head Lawrence Mrwebi in Johannesburg, South Africa on May 4, 2010. (Photo by Gallo Images / Foto24 / Herman Verwey)

The second day of the Mokgoro Inquiry, set up to determine the fitness of Nomgcobo Jiba and Lawrence Mrwebi to hold office at the NPA, saw advocate Chris MacAdam reflect on the early days of decline at the prosecuting authority through political interference.

Chris MacAdam, Senior Deputy Director of Public Prosecutions in the priority crime litigation unit in the office of the National Directorate of Public Prosecutions, testified at Mokgoro Inquiry on Tuesday about how there came a time at the National Prosecuting Authority (NPA) when there was a lack of will to investigate cases and political considerations took root when making decisions to prosecute.

MacAdam presented a copy of an affidavit to the inquiry which he had initially planned to present to the Zondo commission. Nomgcobo Jiba and Lawrence Mrwebi have already been named in the Zondo commission by former Bosasa chief operating officer Angelo Agrizzi for their alleged involvement in corruption with the company. Through their legal representatives, both have denied involvement.

MacAdam’s affidavit details his experiences at the NPA since 2003 and particularly between 2013 and 2015 when things began to change.

On Monday, the first day of the inquiry, acting National Director of Public Prosecutions Silas Ramaite testified on the processes and laws governing the NPA and set out the jurisdiction of prosecutors as terms of debate to determine the fitness of Jiba (Deputy Director of NPA) and Mrwebi (Special Director of Public Prosecution), who stand accused of prosecutorial overreach. As it stands, Jiba and Mrwebi are currently on suspension pending the inquiry.

And according to MacAdam’s affidavit, when South Africa ratified the Convention on Combating Bribery in 2007, the NPA had certain obligations towards the Organisation for Economic Co-operation and Development (OECD), an intergovernmental economic organisation with 36 member countries, to comply with international legal standards.

MacAdam said that in 2013 the NPA was well on its way to meeting the convention requirements. After passing phase one of enacting domestic legislation and phase two of setting up structures to support the legislation, the NPA in 2013 was to embark on phase three — in which the OECD needed to see if the structures actually worked to combat crime. The OECD would send monitors on a regular basis to determine compliance and make recommendations.

MacAdam testified that in June 2014, he was appointed to be a dedicated prosecutor on foreign bribery cases to address criticisms by the OECD of the State’s lack of convictions in bribery crimes. A written report of progress made was expected in October 2014 at a Paris conference.

After a brief reading of the affidavit, the evidence team leader, advocate Nazeem Bawa, proceeded to lead MacAdam’s testimony.

A report was shown to the OECD and they were reasonably satisfied at the time that improvement was shown?” asked Bawa

That is correct,” responded Macadam

In Paragraph 29 of the affidavit, you were informed by advocate Nomvula Mokhatla that you should hand over the foreign bribery portfolio to the Specialised Commercial Crimes Unit (Mrwebi’s portfolio) in the middle of 2015,” stated Bawa.

That is correct. At that time, advocate Mxolisi Nxasana had resigned (as head of NPA) and Mr Shaun Abrahams had been appointed as the national director,” said MacAdam.

Can you explain what you then did,” said Bawa.

I thought I was performing my duties as a result of a delegation issued to me by the national director Mr Nxasana and pursuant to a circular which he had issued. My view was that only Mr Abrahams could revoke that delegation, revoke that circular. So my position was that I could not accede to her request and that this was a matter that should be brought to the attention of Mr Abrahams because he would have the power to cancel that delegation if he deemed (it) necessary,” said MacAdam.

In July 2015, MacAdam had a meeting with Jiba, Mokhatla, legal adviser Dawood Adam and Mrwebi. At this meeting, he was informed that the foreign bribery cases should be transferred to Mrwebi’s unit. At the same meeting, Mrwebi levelled allegations against MacAdam, with Mokhatla confirming that the same allegations had been brought to her attention.

Can you briefly explain those allegations,” said Bawa.

The first allegation was in respect to a Cape Town matter, that I went behind the back of the regional head of the Specialised Commercial Crimes Unit, completely overturning the project plan they had adopted. The second allegation was that Mr Mrwebi was unaware of the fact that I was dealing with these matters and he thought they were still with the Specialised Commercial Crimes Unit. The third matter was that the Specialised Commercial Crimes Unit had been totally excluded from OECD cases, from the date of the on-site visit in July 2013,” said MacAdam.

And what was your response to these allegations?” asked Bawa.

The allegations were untrue. I submitted a detailed report to the National Director (Shaun Abrahams) attaching numerous correspondence with his staff members; emails that I had sent to him. In my view, refuting each and every one of those allegations,” responded MacAdam.

Soon after receiving the report, Abrahams called MacAdam to his office seeking to hear his side of the story.

He said (to) me, and these were his exact words, that ‘I must speak candidly and honestly towards him, he wants to know if there are problems in the NPA and how to address them’,” said MacAdam.

After the meeting, Abrahams promised MacAdam that he was still on the bribery cases and that he would submit a memorandum to the minister of Justice recommending MacAdam attend an October OECD meeting.

MacAdam testified that although he was sent to the Paris OECD meeting he did not have the case files of the Foreign Bribery Unit as Jiba, who was his senior, had taken them from him before he left. Abrahams kept reassuring him that he was still on the foreign bribery cases but seemed reluctant to do anything about the fact that Mrwebi had taken over the unit.

A year later, according to MacAdam, he was contacted by Solomon Hoogenraad-Vermaak, director of ethics management at the Department of Public Service and Administration, who informed him that Mrwebi had submitted a report, to be presented at an OECD meeting, under MacAdam’s name with a few added remarks in red.

This new report had missing information regarding bribery cases that Macadam had previously worked on. In the affidavit, MacAdam raised concerns over the decision not to prosecute over the Net1 tender process with Sassa. And although corruption had never been proven in any court in South Africa with the US company, the issue at stake, said MacAdam, was the fairness of the tender process, something that required an investigation.

The report also noted that there was no basis to investigate any matters relating to the Arms Deal — a finding that, according to MacAdam, was not true as they were still waiting for the outcome of the Seriti Commission of Inquiry into the Arms Deal before instituting an investigation.

MacAdam then submitted a report to senior prosecutor Torie Pretorius, to make him aware of the false report. However, he did not receive any response.

We were back to 2014 where the OECD criticised the country for lack of enforcement,” said MacAdam.

According to Mrwebi’s legal representative advocate Meryn Rip, since MacAdam had been moved from foreign bribery cases at the end of September 2015 he would have no knowledge of what is presently happening in these matters.

So when you say we are back where we started, what do you mean?” asked Rip.

What I meant to convey is that when I look back at what I wrote in 2014, the remarks in red (added by Mrwebi) were not addressing key issues that I had identified,” said MacAdam.

According to Rip, the affidavit presented by MacAdam to the inquiry is from a disgruntled employee who was demoted. South Africa had not been affected in a financial situation resulting from an OECD complaint and the fears that MacAdam had in 2014 when handing over the Foreign Bribery Unit case files did not come to pass.

Rip suggested that MacAdam had not accepted that he was no longer in charge of the Foreign Bribery Unit and hence was reluctant to release the bribery case dockets.

MacAdam said the only reason he was reluctant to hand over the case files was that the national director had no knowledge of Mrwebi’s request to take over the cases, and that Abrahams had encouraged his involvement in OECD meetings.

Your real gripe here is that you were removed and that has clouded your view on the matter,” said Rip.

I deny it emphatically, the only reason I am here today is at the request of the evidence leader,” said MacAdam.

MacAdam said his real complaint was that after he had been pushed out of the Foreign Bribery Unit there had not been any progress in investigations and some had been halted completely.

Furthermore, Mrwebi had used his handover report, passing it off as his own, to be presented as a feedback report to the OECD when the foreign bribery cases were moved to the Specialised Commercial Crimes Unit.

However, according to Rip, Mrwebi had taken MacAdam’s report and made edits to it as a draft after consultations with other advocates and investigators on the various cases.

The inquiry continues on Wednesday 23 January in Centurion. DM

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