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AGE OF (UN)ACCOUNTABILITY

Bheki Cele’s failure to appoint DPCI Judge ‘leaves Hawks exposed to political interference’

Bheki Cele’s failure to appoint DPCI Judge ‘leaves Hawks exposed to political interference’
Minister of Police Bheki Cele during police parade at the Castle of Good Hope ahead of the 2024 State of the Nation Address (SONA) at Cape Town City Hall on 8 February 2024 in Cape Town, South Africa. (Photo: Gallo Images/Brenton Geach)

A crime expert said the failure to appoint a Hawks judge or ombud as required by law was negligent, undermined accountability and potentially exposed the Hawks to inappropriate political interference.

On Monday, 19 February, Police Minister Bheki Cele denied claims that he had failed to appoint a Directorate for Priority Crime Investigation (DPCI) judge, who oversees the crimefighting unit better known as the Hawks.

Cele said the appointment of a DPCI judge was a priority. He was responding to News24’s Chronic Failure report, which detailed how he had crippled the Hawks’ watchdog by failing to appoint a retired judge for nearly two years, rendering the Office of the DPCI Judge dysfunctional or on the verge of collapse.

Frans Kgomo was the last DPCI judge. He was appointed in October 2017 and his contract expired in October 2022. Cele denied Kgomo’s request to extend his term. This left several high-profile investigations into alleged wrongdoing at the Hawks unresolved, including one involving Hawks boss Godfrey Lebeya.

The News24 report also carried Kgomo’s claims that he wanted legislation changed to give the watchdog control over its budgets, appointments and the ability to launch investigations without a formal application.

The Office of the DPCI Judge was established as an independent unit within the South African Police Service in terms of the South African Police Service Act, which states that the police minister must appoint a retired judge to the position after consultation with the justice minister and Chief Justice. 

Gareth Newham, the head of justice and violence prevention at the Institute for Security Studies, said, “To have that office not filled as required by law is negligent and undermining accountability and also potentially leaving the Hawks exposed to inappropriate political interference. So it is crucial that it is filled as soon as possible and it’s astounding that it hasn’t been filled.”

Former National Director of Public Prosecutions Vusi Pikoli said: “If there is such a vacancy, it means that … members of the public are vulnerable, and secondly, there is another opportunity for political interference in the work of the DPCI, which is expected to exercise some form of independence.”

Bone of contention

The lack of independence and resources at the Office of the DPCI Judge was a bone of contention when Kgomo appeared in front of the Portfolio Committee on Police in November 2019.

Kgomo told the committee that since its inception in 2013, the Office of the DPCI Judge had never received the necessary personnel or resources. Kgomo said when he was appointed in October 2017, he asked the police minister to appoint a CEO and a personal assistant to his office, but his request was ignored.

He said Cele also unilaterally rejected his requests to appoint investigators and managers.

Kgomo took Cele to court to ensure his office had sufficient resources to do its work. The minister opposed the action and the case came to nought when Kgomo’s term ended.

Cele dismissive

Asked this week why he had not appointed a retired judge to the office for two years, Cele said: “It would have been better to have asked that person, that judge who is weaponising you [media], that judge fighting his own battle using the media.”

He said Kgomo claimed he was pushed out of his position but the judge’s term had expired.

“If my contract expires and I don’t want to go home, nobody can say I’m pushed away,” Cele said.

He said he had written letters to Justice Minister Ronald Lamola, saying: “Please help us, we do want [a new] judge to be appointed.

A DPCI Judge was appointed, assumed duty. On the first day on the job she had a meeting with Judge Kgomo and tendered a resignation letter on the same day. The process to appoint a judge then had to start again.”

He said he scheduled a meeting with Chief Justice Raymond Zondo to discuss the situation, but the Chief Justice cancelled it. 

Zondo’s office confirmed to News24 that a candidate had been nominated as DPCI Judge, but withdrew over concerns about the office’s resources and independence.

Zondo reportedly then asked to meet Cele and Lamola to ensure future candidates wouldn’t be put off the job for the same reasons. Multiple attempts were made to hold a meeting, with the last being towards the end of 2023, when Cele was unavailable.

Interference concerns

Newham told Daily Maverick the Office of the DPCI Judge was an accountability mechanism to investigate “allegations of interference [in] Hawks’ investigations by powerful interested politicians” and complaints from members of the public about unethical and unfair procedures by the Hawks in their investigations.  

Former NPA boss Pikoli said, “I’m sure the administrative machinery is intact, but the legislation requires a retired judge to serve as the Hawks’ ombudsman. This means you need a powerful individual who can make a decision on the complaints filed against the DPCI.

“So, no findings can be made because it’s more a matter of receiving the complaint, acknowledging receipt of the complaint, and possibly investigators doing their job. But at the end of the day, they’re doing it without proper guidance and aren’t in a position to make a definitive finding on any of the issues.” DM

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