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Anti-Gang Unit boss Andre Lincoln to pay hefty price fo...

South Africa

CONSTITUTIONAL COURT

Anti-Gang Unit boss Andre Lincoln to pay hefty price for failed legal challenge

Major-General Andre Lincoln leads the Anti-Gang unit outside the Cape Town Regional Court during the underworld security extortion trial on November 14, 2018 in Cape Town, South Africa. The unit was in court to arrest one of the accused, Colin Booysen in connection with a separate case of murder where a warrant of arrest was issued for breaking his bail condition when he failed to report to Belhar police station. (Photo: Gallo Images / Netwerk24 / Jaco Marais)

Anti-Gang Unit head Andre Lincoln has been saddled with major legal costs after the Constitutional Court dismissed his appeal against a Supreme Court of Appeal judgment that found that a 1997 investigation into the major-general by the SAPS had not been malicious.

The matter has had a long and winding road through the country’s criminal and civil courts since 1997, but on 5 August 2020, Major-General Andre Lincoln’s last-ditch attempt to appeal against the Supreme Court of Appeal (SCA) judgment failed.

While no cost order was granted in his Constitutional Court challenge, Lincoln has been saddled with the costs of two senior counsel, as ordered by the SCA on 4 May 2020.

Lincoln will turn 60 on 28 October 2020 and the onerous costs might see him having to dig into his pension.

The Constitutional Court ruled that Lincoln’s application should be dismissed “as it does not engage this court’s jurisdiction and, in any event, bears no reasonable prospects of success”.

In May 2020, the SCA vindicated a 1997 SAPS investigation into Lincoln in relation to allegations of fraud, theft and corruption, 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 Magistrates’ Court, Lincoln launched a R15-million damages claim for “malicious” prosecution against the minister of safety and security.

It is this damages claim that has now finally reached a cul-de-sac.

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 SAPS with the rank of director.

In 1996, after Lincoln had received information about Palazzolo – then happily a 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 the 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 in 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 SS Bouwer and Superintendent Senekal (no first names are provided in the court papers) 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. 

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 [Leonard] 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 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.

In August 1997, Fivaz had summoned Lincoln to a meeting in his office, but Mbeki had intervened by cancelling the get-together and 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 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 in the SCA judgment.

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 SCA ruled in favour of the minister of police and ordered Lincoln to pay the costs of two counsel.

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”.

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 neither 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 its investigation prior to Smith’s information, said Eksteen.

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 to Angola.

“The letterhead was on that of Cape International 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 Eksteen.

“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.

Smith told Daily Maverick that the Constitutional Court ruling on 5 August 2020 had vindicated him and that justice had prevailed. DM

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