South Africa

SAPS WARS

SCA rules prosecution of top policeman Andre Lincoln was not malicious

Head of the Western Cape Anti-Gang Unit André Lincoln. (Photo: Leila Dougan)

The Supreme Court of Appeal (SCA) has vindicated a 1997 SAPS investigation into current Anti-Gang Unit head Andre Lincoln in relation to allegations of fraud, theft and corruption, and involving Italian Cosa Nostra boss Vito Palazzolo. The prosecution was not malicious, the court found.

Lincoln, then head of the Presidential Investigating Task Unit (PITU), was acquitted in 2003 of 17 charges of fraud, corruption and theft and claimed he had been framed by SAPS colleagues.

After the Western Cape High Court set aside a nine-year jail sentence handed down in the Wynberg Magistrate’s Court, Lincoln launched a R15-million damages claim for “malicious” prosecution against the minister of safety and security.

The application was at first dismissed but later overturned on appeal. It went to trial in the Western Cape where a majority judgment found in favour of Lincoln.

The minister of police took this judgment to the SCA where acting Judge JW Eksteen with judges Cachalia, Saldulker, Van Der Merwe and Dlodlo concurring, found on 4 May 2020 that there had been enough evidence to warrant the investigation into Lincoln.

More than 200 witnesses had been interviewed in the probe into Lincoln and the PITU and it had been lawful, the court found, for the then-national director of public prosecutions (NDPP), Bulelani Ngcuka, as well as the then-attorney-general of the Western Cape, Frank Khan, to institute a prosecution.

The court also found that the majority judgment by judges Mushtak Parker and Rosheni Allie had lost sight of the fact that Lincoln had borne the onus to prove that the investigation had been maliciously initiated.

“He did not even attempt to do so in my view,” said Eksteen.

The Lincoln matter has been so long-running that Palazzolo, who was sentenced to nine years in an Italian jail, has already served his term and was released on probation in 2019. Palazzolo, who also served earlier jail terms in Switzerland and Thailand, has maintained links in South Africa throughout.

The background to the matter begins at the dawn of South Africa’s democracy when Lincoln, who had previously served as an ANC intelligence operative, was integrated into the newly formed South African Police Service with the rank of director.

In 1996, after Lincoln had received information about Palazzo – then happily resident in Cape Town – and his links to high-profile politicians, underworld figures and businessmen, the PITU was established. 

The unit was mandated to report directly to the then-president, Nelson Mandela, and the commissioner of police, General George Fivaz, although Lincoln had failed to do so initially.

The unit essentially operated outside the usual command structures of the SAPS and had sought to take over cases from other units, which had caused great dissatisfaction.

It was partly as a result of this, Lincoln had argued, that he had been “set up” by fellow officers who had taken their concerns to Fivaz. 

Attorney-General Khan had also alerted Fivaz to concerns about the unauthorised release of an Italian-born prisoner, Giuseppe Mangiagalli, allegedly at the insistence of Lincoln. 

Mangiagalli was serving a 15-year sentence but was recruited by PITU as an informer. Mangiagalli soon moved into a luxury apartment in Bloubergstrand, Cape Town, and was provided with an Audi A4 and R50,000 cash after he was released.

Lincoln viewed the resistance from fellow SAPS officers as an interference with his mandate and had reported this to the then-deputy president, Thabo Mbeki.

In mid-1996, Fivaz had instructed Senior Superintendent Bouwer and Superintendent Senekal to conduct an “efficiency assessment” of the PITU.

The assessment included an investigation into the unit’s efficiency in its use of state resources. It was during the course of this investigation that Abram Smith, who had worked with Lincoln in the PITU, had made contact with the evaluation team. 

The Lincoln matter has been so long-running that Palazzolo, who was sentenced to nine years in an Italian jail, has already served his term and was released on probation in 2019. Palazzolo, who also served earlier jail terms in Switzerland and Thailand, has maintained links in South Africa throughout.

Smith had provided “serious incriminating allegations against Lincoln at the PITU,” said the court.

On 19 August 1997, the evaluation team “identified a number of transgressions by the PITU which they considered to be of a criminal nature and recommended that these be investigated. It suggested Director Knipe conduct the investigation.”

This was the investigation that ultimately resulted in Lincoln’s arrest, charging and the subsequent criminal trial during which he was convicted on 17 counts.

While Lincoln had sought to finger Smith as the main protagonist in the matter, the SCA found that only two sets of charges had been raised in Smith’s affidavit and these were totally unrelated to the appeal.

Fivaz had summoned Lincoln to a meeting in his office in Pretoria on 15 August 1997 but Mbeki had intervened to cancel the get-together, setting up an alternative meeting at his residence.

This was attended by Mbeki, the then-minister of safety and security, Sydney Mufamadi, Fivaz and Lincoln, who had been accompanied by Inspector Piet Viljoen, an officer in the PITU.

“At the meeting, both Lincoln and Fivaz raised their concerns arising from the operation and reporting structures of the unit. Fivaz reported the complaints of misconduct by Lincoln and made clear that he was obliged to investigate these.”

It was resolved that Knipe would lead the investigation into the complaints and he had been duly appointed.

Knipe, the SCA found, had been “alive” to Smith’s “difficult” history with Lincoln, and which had been recorded in the affidavit, as well as Smith’s recent departure from the PITU. 

For this reason, Knipe had not taken Smith’s allegations at face value and these had been thoroughly interrogated, said the court.

Lincoln, the court added, had made representations to the NDPP and while this evidence had not been revealed, “the only logical inference that can be drawn from it is that the NDPP was satisfied that the content of the dockets revealed reasonable prospects for a successful prosecution,” said Eksteen.

Both the trial court and the minority judgment in the Western Cape High Court found that Lincoln had failed to establish that members of the SAPS “did not have reasonable and probable cause for the prosecution”. 

However, the majority judges had not found it necessary to delve into this question, said Eksteen.

The majority judgment found “the requirement of malice and animus injuriandi has to be inferred from the conduct of Smith, bearing in mind that Smith ought reasonably to have known that the allegations of fraud that he levelled against Lincoln as well as the allegation that Lincoln had colluded with Palazzolo were false”.

With regard to Palazzolo, Lincoln had said that Knipe had placed “enormous pressure” on the Mafia boss to deny that he had ever been reimbursed by Lincoln for a trip to Angola. Palazzolo, however, filed an affidavit confirming that Lincoln had offered to reimburse him.

While Lincoln had claimed that Smith’s affidavit had been the “trigger” that had given rise to the investigation, said Eksteen, the “facts alleged in the charge sheet relating to fraud could only have been obtained from other sources”.

Smith had also not lodged any charges against Lincoln, nor had he made an allegation of fraud against him. And no evidence had been presented to substantiate Lincoln’s claim that the allegations in Smith’s affidavit had been “wilfully false.”

“The findings by the majority in this regard are not supported by the content of the affidavit. Smith’s allegations of Lincoln’s collusion with Palazzolo were not causally connected to any of the charges. Evidence did not establish that Smith had instigated any of the prosecutions,” said Eksteen.

Besides, the evaluation team had carried out their investigation prior to Smith’s information, said Eksteen.

What Lincoln had set out to achieve in the trial was his innocence and it was to this end that his evidence was directed. 

But, this, said the SCA, fell short of establishing the “absence of reasonable and probable cause in respect of which he bore the onus”.

With regard to Palazzolo, Lincoln had said that Knipe had placed “enormous pressure” on the Mafia boss to deny that he had ever been reimbursed by Lincoln for a trip to Angola. Palazzolo, however, filed an affidavit confirming that Lincoln had offered to reimburse him.

This allegation formed part of Count 39 of Lincoln’s original fraud charges arising out of a claim to the SAPS for the payment of S&T for living expenses in Angola “when these expenses were allegedly fully paid for by Palazzolo”.

It was Fivaz and others who had “identified matters which they believed constituted prima facie evidence of criminal conduct” and so Lincoln’s claim that Smith had been “the root of all evil” could not be true, said the SCA.

What Smith had done was set out his knowledge of Lincoln’s visit to Angola together with Palazzolo and which was not in dispute. Lincoln had advised Smith that he had had business in Zaire with Mbeki.

“But he had not disclosed his visit to Angola. When Smith discovered these facts he confronted Lincoln, who then informed him of the trip.”

Smith had attested to the fact that Lincoln had produced a letter dated 30 April 1997 which was for a visa for Lincoln to go Angola.

“The letterhead was on that of Cape Intentional Holdings which is a front company used by Vito Palazzolo,” Smith had said

The letter had been addressed to a Mr Rafael at the Angolan Consulate whom Smith said was a close associate of Palazzolo. The letter had also been signed by Palazzolo under his alias Robert von Palace.

All of the dockets relating to Lincoln’s prosecution had been sent to his legal team at the time of his trial, said Ekseen.

“This notwithstanding, they did not produce these to the court and when Knipe, Rossouw and Bouwer testified, the dockets were not put to these witnesses…”

Lincoln had failed to establish the objective requirement of reasonable and probable cause.

“Indeed, as a matter of fact, at least three advocates in the office of the attorney-general and the NDPP, all formed the view that the dockets exhibited reasonable and probable cause to prosecute those charges that were instigated.”

The SCA ruled in favour of the minister of police and ordered Lincoln to pay the costs of two counsel. The order of the full court of the Western Cape Division was also set aside. DM

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