A high court judge has demonstrated how the Hawks, the “elite crime-fighting unit”, were used as a plaything by Malusi Gigaba – a man who has no formal role in the criminal justice system, but clearly has real power over the Hawks. The judgment demonstrates how Hawks officers were prepared to abuse the rights of a woman, in front of her children, simply because Gigaba asked them to.

Last week, Judge Cassim Sardiwalla ruled that the arrest of Gigaba’s wife, Norma Mngoma, and the confiscation of her cellphones and laptops was illegal. (Legally, her surname is Gigaba, but the couple is in the process, presumably, of separating).

The judge further stated that the “involvement of the Hawks itself speaks to the abuse of power by Mr Gigaba as a former minister in using the state administration for his own personal benefit”.

Sardiwalla said that the two Hawks officers who conducted the arrest “appeared to have been motivated by an abuse of power by a former minister and member of the executive”.

This raises important questions about Gigaba, his conduct, and his lasting power. Considering that he has held some of the most important positions in Cabinet, but currently has no formal position, it also leads to questions about how power actually works in South Africa. It may well be that Gigaba’s perch on the ANC’s National Executive Committee is more important than anything else.

The facts of Mngoma’s arrest are important, and tell a story of their own.

As the judge recounted, in July last year two Hawks officers arrived at her home, where she was with her young children.

They told her that she had damaged a car using a vegetable slicer and had sent an insult to a friend of Gigaba using her phone, and they wanted all of her electronic devices. When she offered them the cellphone she had used to send the insult, they still insisted on taking all of her cellphones and laptops.

She then asked to call her lawyer. But the two officers claimed that because they were the Hawks, and not ordinary police officers, she had no right to call her lawyer. They told her that she had to follow their orders, again, because they were Hawks officers.

Of course, this was a lie – as a South African citizen she had the right to call her lawyer and had no duty to follow their instructions.

After taking her devices, and their PIN codes, the officers left.

Mngoma then tried to get the devices back. She told Gigaba that she would lodge a legal application to have them returned.

He told her the Hawks would return to her home on 31 July 2020 to return the devices.

This last detail is important, because it reveals his personal involvement in the matter.

However, when the officers returned to her home, they arrested her and took her to a police station. At no point was she shown a warrant of arrest.

Once at the police station she insisted on calling her lawyer. Again, the two Hawks officers refused to allow her to do this. However, another police officer at the station, an ordinary officer, intervened. This officer ensured that she was given access to a landline and was able to phone her attorney (her attorney in this case is Victor Nkhwashu, who is likely to be busy this year as he also represents ANC Secretary-General Ace Magashule).

Even then, she could not be released immediately. The two Hawks officers had removed the docket and so her release could not be processed.

As the judge summed it up:

“Their actions ensured that the applicant could not be taken immediately upon execution of the warrant and apply for bail, with the hopes that she would spend the weekend in a jail cell in the middle of winter during a pandemic.”

The next day Nkhwashu was able to contact a prosecutor, and arranged for her bail and release.

The judge explained that in their response the Hawks claimed that Gigaba had lodged a complaint with them because he believed there was a conspiracy to murder him, and that there had been a suspicious vehicle outside his home. He claimed that the people in the vehicle were from “counter intelligence” and that he felt unsafe in his own home.

There is also no evidence before this court that there is or was a conspiracy to murder Mr Gigaba, or how, if it all, the applicant is connected to this offence.

However, Sardiwalla noted:

“There is also no evidence before this court that there is or was a conspiracy to murder Mr Gigaba, or how, if it all, the applicant is connected to this offence.”

In other words, Gigaba’s version seems bogus.

Sardiwalla explained how the Hawks could not and should not have been involved in the case that, in the end, boiled down to two simple charges: malicious damage to property and crimen injuria.

He pointed out how the Hawks have a legal obligation to be independent, as was spelt out in excruciating detail in three Constitutional Court rulings (the final ruling was known as Glenister III after Hugh Glenister, who legally challenged the dissolution of the Scorpions).

As a result of this ruling Mngoma gets back all of the information the Hawks took from her devices.

But, more importantly, she has revealed how Gigaba still has major political power, the power to have her arrested and treated illegally.

On Tuesday the Hawks told Daily Maverick that the two officers involved (named in the judgment as Captain KM Mavuso and Sergeant Norton Ndabami) are still at work. 

Spokesperson Colonel Katlego Mogalo said: “Legal services and their principles are looking at the judgment. On Wednesday evening she confirmed the situation had not changed since then.

It is not a difficult decision to make. Even if the Hawks decide to appeal this judgment (and there is surely no basis for them to do that) it would be good practice to suspend these officers. The South African Police Service Act allows officers to be suspended pending investigations, and this happens on a regular basis. And yet no action has been taken.

On Wednesday, at 9.11am, Daily Maverick sent a WhatsApp message to a number believed to belong to Gigaba. An SMS was sent to another number also believed to be used by him. The messages asked for any response he may wish to make about the ruling, and that “the inference is that this showed you played a role both in the conduct of the Hawks officers toward her and that you in fact orchestrated her arrest”. At the time of publication no response has been received (of course, if, and whenever, a response is received it will be added to this article).

However, in a tweet last week, Gigaba stated that he was keeping quiet because the woman concerned is the mother of his children. He also pointed out, correctly, that he was not a party in the case.

But many may feel he does have questions to answer.

He has not disputed that he orchestrated Mngoma’s arrest.

He has not explained his view of the way the Hawks officers behaved.

He has not offered any explanation as to how it came to be that he believed his life was in danger when no evidence of this was presented to the court.

Could he perhaps shed some light on why the Hawks spent time and resources over an insult that was sent to his friend, when they are not able to arrest someone like Markus Jooste?

And crucially, he has not responded to the judge’s finding that all of this happened “with the hopes that Mngoma would spend the weekend in a jail cell in the middle of winter during a pandemic”.

Absent any explanation, absent any full response to the finding, perceptions will grow that Gigaba still has important power. And that he is not afraid to use it to the detriment of others.

This is a person who says that he believes he still “has a future in the ANC, and a long one”. It may be that his party should also consider asking him questions on this issue. He is a member of the party’s National Executive Committee. Perhaps some of the party’s members may ask if it is fitting that he retain that position when he refuses to respond to these accusations.

The Hawks, too, have questions to answer:

Why were their two members allowed to behave the way they did?

Did their superiors know they were doing it?

Were these officers involved on their own initiative or did someone order them to do this?

What action is going to be taken to ensure this does not happen again?

Again, absent any explanation, it will lead to a conclusion that the Hawks are failing in their constitutional duty to be independent. It is not enough to say that there is an investigation. The leadership of the Hawks should surely provide some explanation about what happened.

If the only response to all of this is a deafening silence, the president’s promises of reform and the ANC’s promises of renewal will surely ring hollow. DM