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Forensic investigator’s challenge to NPA could rock critical KZN cases

Forensic investigator’s challenge to NPA could rock critical KZN cases
A forensic investigator has accused the NPA, UUW, and water minister Senzo Mchunu (pictured) of sabotaging criminal cases. (Photos: from left: Luba Lesolle/Gallo Images; OJ Koloti/Gallo Images; and Eskom)

President Cyril Ramaphosa has signed the bill establishing the Investigating Directorate against Corruption, but a row is brewing that raises new questions about the capacity of the NPA to handle complex, politically fraught cases – especially in KwaZulu-Natal.

Forensic investigator Leo Saunders has thrown down the gauntlet to the National Prosecuting Authority (NPA), uMngeni-uThukela Water (UUW) and water minister Senzo Mchunu over what he alleges amounts to attempted sabotage of criminal cases brought against former board members, executives and service providers to UUW.

Saunders is the managing director of Integrity Forensic Solutions (IFS), which began an investigation that in turn led to the criminal indictments when he was engaged by Mhlathuze Water in 2022. Mhlathuze was headquartered in Richards Bay prior to its merger last year with Umgeni Water to form UUW.

Now, Saunders is alleging “sabotage and constitutional delinquency” by entities who had previously appointed IFS to carry out various forensic investigations.

He claims that not only UUW, but also the eThekwini municipality, have withheld invoices and improperly terminated their contracts with IFS. In both cases, IFS claims to have valid agreements to assist the police and prosecution in order to take the cases up to, and through, the trial stage.

These agreements made provision for the affected entities (UUW and eThekwini respectively) to carry the cost of the investigation and prosecution support by IFS.

In correspondence with the NPA, Saunders’s attorneys allege, “the conduct of these organs of State aims to prevent politically exposed persons implicated in the forensic audits/investigations from being held criminally liable for their actions.”

Worse still, Saunders implicates the NPA itself in what is at best incompetence and at worst complicity in the mismanagement of their own prosecution cases.

This includes, he alleges, a failure to protect him as their key service provider and expert witness, as well as, in the case of UUW, a formal complaint against the NPA prosecutor for allegedly introducing serious errors into the criminal indictment.

His lawyer’s letter takes direct aim at the prosecutor leading the UUW cases, Advocate Reenai Ramouthar, and alleges that “at a minimum, the conduct of Ramouthar amounts to gross dishonesty, and or incompetence”.

In a terse response, the NPA said that “regarding the issue of the alleged conduct of prosecutor Adv Ramouthar, we take complaints against prosecutors seriously and we will ensure that it is investigated by an impartial panel and that the case proceeds despite such internal investigation”.

eThekwini and Zandile Gumede 

We will return to Saunders’s complaints about the NPA, but it is important to note that his claims may impact not only the prosecution of the UUW matters, but also the high-profile racketeering and fraud case against former eThekwini mayor Zandile Gumede and 21 others.

Read more in Daily Maverick: State has ‘irrefutable evidence’ to convict Zandile Gumede and 21 alleged co-conspirators in R320m graft trial

This case, where IFS performed the key investigative and forensic work, relates to a R320-million refuse removal contract.

Since the beginning of the Gumede trial last year, lawyers for the various accused have focused attacks on the legality of the appointment of IFS by eThekwini’s City Integrity and Investigations Unit (CIIU) to conduct the investigation.

For instance, in mid-July 2023, Advocate Jimmy Howse (representing former deputy head of Supply Chain Management Sandile Ngcobo) argued that the CIIU had violated the processes of selecting a company to investigate this matter. “The court should consider the investigation unlawful and irregular,” he urged.

While IFS had already been appointed to a panel of forensic investigators by the municipality, there were some legitimate questions about the unusual speed with which the CIIU converted an anonymous dossier dropped off at the municipality into a deep investigation led by IFS.

Gumede has the support of the Radical Economic Transformation faction of the ANC (which controls the eThekwini council) and has previously alleged that her arrest is the work of political opponents using state machinery to destroy her political career.

Read more in Daily Maverick: Court hears that ‘Radical Economic Transformation’ is central to Zandile Gumede graft case

Yet, at the other side of the scale, the counterattack against the IFS investigation appears just as questionable.

In early July, the head of the CIIU, Mbuso Ngcobo, who had presided over the appointment of IFS, resigned effective 31 July, citing death threats.

In short order, the former provincial police commissioner of Mpumalanga, Thulani Ntobela, was appointed as the interim head of the CIIU from Monday, August 7, apparently by using the municipal manager’s special powers to make fixed-term appointments in “exceptional circumstances”.

Less than two weeks into his new job, Ntobela unilaterally terminated the IFS contract without engaging IFS but instead writing to the Hawks, stating that “this unit will no longer fund the project that has no ending”.

On 6 February 2024, Saunders went to court to challenge this decision.

In his affidavit, he avers that “IFS submits further that the inescapable conclusion is that this decision was taken for an improper purpose or ulterior motive… The effect of the Impugned Decision is intended to effectively interfere with the [Gumede] criminal prosecution and, if it is allowed to subsist, will have that desired effect.”

He adds that “Mr Ntobela has not sought to engage with IFS or with me at all… This is apart from his cryptic email to our attorneys received on 19 September 2023 advising them that he welcomed any possible court action — ‘Your email is acknowledged and I will be gladly waiting for summons’.

“IFS was denied any hearing at all… I can therefore only conclude that Mr Ntobela is acting in an improper manner, motivated by an ulterior motive in ensuring that IFS’s continued participation in the pending criminal trial is halted… I am a key witness in that trial, and it is not exaggerating the position to state that the prosecution will collapse without my evidence on the forensic underpinnings of the corruption charges pending against the Ms Gumede and former municipal councillors.”

Zandile Gumede

Former eThekwini mayor Zandile Gumede. (Photo: Mandla Langa)

Ntobela, who ran private investigation outfit the iFirm before his eThekwini appointment, has enjoyed a positive reputation, but his credibility in this case has been undermined by the municipality’s failure to deal with Saunders’s allegations.

The city has so far failed to deliver an answering affidavit and has dragged its feet on making the legally required disclosure to IFS of the documents underlying Ntobela’s appointment and his decision to terminate their contract.

There were certainly issues Ntobela could have raised with IFS, given that its contract was repeatedly extended; it appears that the Hawks – and even the NPA — largely outsourced their work to IFS at the city’s expense.

But Ntobela’s unilateral cancellation without regard for the consequences of the Gumede case, as well as the city’s failure to provide an explanation, both give credence to Saunders’s allegations of a conspiracy.

And now that view is bolstered by what Saunders claims is a similar modus operandi adopted by UUW.

The playbook at UUW

Like at eThekwini, IFS was appointed to a panel of forensic investigators by Mhlathuze Water — in this case with effect from November 2021.

Saunders says in an affidavit that on 14 December 2021, he was contacted by the Head of Risk at Mhlathuze, Bongi Skosana and informed that a whistleblower had alleged that the chief executive, Mthokozisi Duze, along with other senior employees of Mhlathuze had committed misconduct in respect of the procurement of goods and services.

IFS were appointed to investigate allegations that the CEO, the chief financial officer and the head of legal acted in concert to circumvent tender processes in favour of a law firm, Mhlanga Inc, to the prejudice of Mhlathuze to the extent of R37-million.

IFS compiled a forensic report which confirmed that the allegations were credible and the board of Mhlathuze subsequently mandated IFS to register a criminal case and to support the Hawks and the NPA in bringing the findings of the report to a court-ready state.

It was alleged that the suspects were assisted by three members of the board of Mhlathuze in their attempt to evade accountability. When these efforts could not stop the investigation, Duze also procured the assistance of the Director General (DG) in the KZN Office of the Premier, Dr Nonhlanhla Mkhize.

The DG was allegedly party to a plot to intimidate the chairperson of the board of Mhlathuze and to induce her to stop the investigation.

On 30 August 2022, eight accused were arrested by the Hawks in respect of the cases flowing from the findings in the report compiled by IFS, including the DG. Subsequently, further accused were joined to the prosecution.

According to Saunders, things changed after Mhlathuze merged with UUW in September 2023.

Saunders alleges that Skosana, the risk manager who was the liaison point with IFS, was instructed to take leave, not to liaise with IFS during her leave and not to continue with the investigations into the conduct of Duze, Mkhize and others until after the 2024 elections.

He states that she resigned under duress, following which, in October 2023, all contracts with IFS were suspended pending UUW obtaining legal advice on the validity of these contracts.

Read more in Daily Maverick: Stemming the tide — Senzo Mchunu battles ongoing water crisis while confronting his party

Saunders notes that UUW obtained two legal opinions, both of which confirmed the validity of the appointment of IFS.

UUW nevertheless terminated the contract while IFS was and still is required to provide consultancy and advisory support to the DPCI and NPA, as well as to lead evidence in the upcoming criminal trial.

Correspondence between IFS and UUW shows that at one point the water utility tried to rely on the dispute between eThekwini and IFS as justification for its own actions in terminating the relationship.

On top of the threat to the UUW-linked criminal trial, it is understood that there are pending claims against UUW totalling close to R100-million. These flow from the cancellation of two contracts based on investigations done by IFS.

Following the dismissal of IFS, UUW’s defence of these civil claims is now also potentially in jeopardy.

In an affidavit for the purposes of laying a charge of subverting the administration of justice, Saunders alleges that UUW’s termination of the IFS contract “seeks to assist the accused in the matter to evade accountability and is a contravention of inter alia the provision of the PFMA”.

In letters to Minister Mchunu, lawyers for IFS said IFS had brought these matters in detail to the attention of the chairperson of the board of uMngeni-uThukela and the acting chief executive, but UUW has persisted with the termination of IFS services and has resisted paying outstanding invoices.

IFS lawyers requested that the minister “take note that a reasonable apprehension exists that a concerted and collective effort is being made by persons on various levels at uMngeni-uThukela to sabotage the ongoing criminal case against the 16 accused”.

They pleaded with Mchunu to initiate an investigation into the conduct of his water board.

So far both the UUW board and the minister have failed to act on these allegations. Neither responded to questions from amaBhungane.

 Senzo Mchunu, NPA

Minister of Water and Sanitation Senzo Mchunu. (Photo: Gallo Images / Darren Stewart)

Back to the NPA

The NPA appears to have embraced the work done at Mhlathuze by IFS, allocating specialist prosecutors to oversee the investigations conducted by the SAPS and IFS as a Prosecutor Guided Investigation. The lead prosecutor in the case was Adv Reenai Ramouthar.

Following the arrests in the case, the court ordered that a final indictment be presented on 29 June 2023.

Due to the seriousness of the case, the Office of the Deputy Director of Public Prosecutions in KwaZulu-Natal, (DPP) was to receive a presentation of the indictment on 27 June 2023, prior to it being presented at court.

In a formal written complaint to the NPA, Saunders states that “on or around 20 June 2023, I learnt that Ramouthar did not have a grasp of the substantive facts of the case despite being briefed on these facts on several occasions by IFS and the investigation team of the SAPS from March 2022 to 29 June 2023.

“This was despite the fact that she had participated in pre-trial processes related to the matter i.e. applications for section 205 subpoenas, applications for search warrants and warrants of arrest and bail applications. Ramouthar guided and took decisions in respect of these processes.”

Saunders writes that Ramouthar’s boss, Specialised Commercial Crime Unit head Advocate Bulelwa Vimbani-Shuma, then agreed to let Saunders compile a draft indictment and submit an electronic copy to Ramouthar and the prosecution team for consideration and input.

“On 22 and 25 June 2023 respectively I submitted the first draft and then final contribution to the indictment. Ramouthar disregarded these contributions and only started drafting her contribution to the indictment on 25 June 2023.

“Ramouthar’s first contribution to the indictment was incongruent with the State’s evidence and the substantive facts of the case. This indictment was so poorly drafted that Advocates Vimbani and Naicker agreed that it would be an embarrassment to present same to the Office of the DPP for consideration a mere two days prior to the indictment being due at court.”

Saunders says Vimbani agreed with him and it was Saunders’s draft that was presented to the DPP representative, who ultimately authorised the indictment subject to minor adjustments, on 27 June 2023.

“This indictment was then submitted to court on 29 June 2023. I and others from the investigation team had sight of the indictment.”

Saunders then alleges a bizarre series of events in which he alleges that Ramouthar, after the fact, replaced the approved indictment with a backdated version of her own.

He claims that “the condition of the backdated indictment was as poor if not worse than the previous indictment that Ramouthar had compiled on 25 June 2023. The charges do not accord with the evidence at the State’s disposal, incorrect charges and evidence is attributable to the accused, the conduct of the accused is confused and conflated, among other things.”

Pulling the plug

In parallel with these developments, Saunders wrote to the National Director of Public Prosecutions to raise the alarm about having the plug pulled on his trial-linked contracts.

His letter of 15 November 2023 noted that a modus operandi had developed whereby when IFS made findings against politically exposed persons and criminal processes were underway, the legality of IFS’s appointments would be questioned and contracts suddenly terminated.

“Certain officials from the SAPS and the NPA have communicated the view that, in the circumstances, this is a civil matter between IFS and the respective organs of State. We humbly differ with this view… The conduct… is criminal, unconstitutional and seeks to undermine the very constitutional mandate of the offices of the NPA and the SAPS.”

The NPA head office was clearly alive to the problems that the termination of IFS created for their cases, both in respect of eThekwini/Gumede and UUW, and began negotiations with IFS over a contract and service level agreement.

Head office gave authorisation on 10 November for the NPA to source and pay for further services from IFS, but Saunders alleges that KZN officials continued to be obstructive.

IFS complained that its first invoice under the new agreement with the NPA was rejected by the KZN officials and the company’s lawyers wrote to the NPA giving notice it was intending to sue.

More seriously, in his 10 April complaint to the NPA, Saunders alleged that “in January 2024, Ramouthar was instructed by Adv Vimbani to mitigate the risk associated with not being able to access the support of IFS in the circumstances and to commence processes to secure the continued assistance and support of IFS… To date, Ramouthar has never made any contact with IFS in this regard, despite the matter being adjourned for 15 April 2024 in the Durban High Court.”

Summarising his concern about Ramouthar’s conduct, including with respect to her alleged creation and backdated substitution of a flawed new indictment in the UUW case, Saunders wrote, “At a minimum, the conduct of Ramouthar amounts to gross dishonesty, and or incompetence and will potentially bring the office of the NPA into disrepute if it becomes public knowledge. The conduct of Ramouthar also has the potential to expose the case under subject to serious legal challenges from the accused.”

On 26 April 2024, attorneys acting on behalf of IFS wrote to the DPP KZN and KZN SCCU head to put the NPA on terms.

IFS’s lawyers pointed out that “despite the serious allegations made against Ramouthar, she remains the prosecutor in charge of the criminal proceedings. It must be kept in mind that our client will be required to present evidence at the criminal proceedings and consult with the prosecutors handling the matter, which includes Ramouthar. Therefore, it cannot be definitively said that Ramouthar will remain unbiased when dealing with our client’s participation in the criminal matter now that she is aware of its complaint against her.”

The letter demanded an undertaking by no later than close of business on 3 May 2024, that the NPA would properly consider the complaint against Ramouthar and thereafter initiate an investigation into Ramouthar’s conduct.

Extraordinary response

On 10 May the office of the State Attorney, on behalf of the NPA, delivered an extraordinary response.

On the matter of the complaint against Adv Ramouthar, made by way of sworn affidavit, the State Attorney, on behalf of the NPA, stated the following:

“The prerogative to take disciplinary action or not against any employee vests with the employer. This prerogative is obviously exercised within the confines of the employer’s disciplinary code and procedures and in line with the provisions of the Labour Relations Act. Accordingly, your client has no right to tell our client when, and for what misconduct, our client must institute disciplinary action against any of its employees. In any event, client’s view is that Advocate Reenai has conducted herself in accordance with reasonable and acceptable standards of behaviour that are expected of her in the workplace and has complied with the disciplinary code and procedures at the workplace.”

The letter also contained blatantly contradictory expressions regarding the rendering of prosecution services to the NPA by IFS.

On the one hand, it made an implicit threat to obtain contractually agreed services (essentially the expert testimony by Saunders in court) by way of a compelled subpoena and invited IFS to proceed with legal action over its disputed first invoice to the NPA. On the other hand, it sought a meeting with the sole purpose of finalising the Service Level Agreement.

Implications 

These allegations go to the heart of some of the problems bedevilling the NPA: firstly, it’s lack of internal capacity and resultant outsourcing culture (along with its inability to manage those outsourced services); secondly, its lack of a clear policy with respect to handling complaints about prosecutorial misconduct.

It is disturbing that the NPA sought to deal with allegations that potentially impact the integrity of a trial as a matter of labour relations, as if this were some minor workplace issue.

We put it to the NPA that:

  • Saunders put a version on record under oath alleging that Adv Ramouthar was either incompetent or devious or both;
  • He made direct allegations concerning the implications of this for the prosecution and supported his version with reference to the passage of the drafting of the indictment; and
  • The knee-jerk response that Adv Ramouthar “has conducted herself in accordance with reasonable and acceptable standards of behaviour that are expected of her in the workplace” appeared to prejudge the matter.
  • We wrote that “it is clear that this version deserves proper engagement and rebuttal — or confirmation. Either Mr Saunders is a charlatan attempting to hold the NPA to ransom to cover up his substandard work and his exploitation of his appointment — or else it is the NPA that is corrupt or incapable and attempting to hide this by bluster and threat. There is a third possibility: that both are true.

“In every case, it would represent an abrogation of the NPA’s duty were it to refuse to deal with the challenge posed by Mr Saunders.”

The NPA’s special director for legal affairs, Adv Mthunzi Mhaga, wrote back.

He stated: “Kindly note that the majority of your questions relate to both investigative and evidential issues on a matter that is sub judice in view of the prosecution underway in court, therefore we are not able to respond in detail to many of the questions you have raised…

“Regarding the issue of the alleged conduct of prosecutor Adv Ramouthar, we take complaints against prosecutors seriously and we will ensure that it is investigated by an impartial panel and that the [criminal] case proceeds despite such internal investigation.”

Asked for details about the composition and terms of reference of this impartial panel, Adv Mhaga replied that “this is an internal investigation that the employer will be conducting against the prosecutor and therefore by its nature an internal matter that we are not at liberty to discuss in detail in the media”.

Both the Gumede and UUW cases are politically fraught and subject to major external pressures. The MK party’s new dominance in KZN is going to ramp up that pressure exponentially.

Saunders’s evidence suggests the NPA is at best ill-equipped to weather this storm and at worst, willing to bend with the prevailing winds.

Watch this space. DM

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Comments - Please in order to comment.

  • Denise Smit says:

    And the RET show goes on to the detriment of service delivery, and against the rule of law. Corruption rules, no renewal for the ANC

  • Denise Smit says:

    The MK faction hard at work in KZN to the detriment of service delivery, against the rule of law. Corruption rules in no renewal in MK KZN

  • Dennis Bailey says:

    Thanks, Sam. It’s good that you’re on to this: “The MK party’s new dominance in KZN is going to ramp up that pressure exponentially.” How so? MK seems a lame duck that has simply disenfranchised its electorate to date unless you know something we don’t.

  • Les Thorpe says:

    S.A. is just one big cesspit of corruption, fraud, maladministration, . . . The list goes on and on. I suppose this case (as per the article) will take another ten to fifteen years to investigate as it is in no politician’s interest to pursue the matter. So much for service delivery to “our people”.

  • Alley Cat says:

    I have seen many fellow commentators slating the NPA in the past. I thought these were unfair, but now I wonder?? Surely Ms Batohi should get involved before we lose yet another case against these trough feeders?

  • Piotr Vaens says:

    The irony of article is palpable but lost on the author.
    Imagine a private firm, usurping the functions of public law enforcement agencies, appointed under questionable contracts worth millions of taxpayers rands, making accusations and complaint when the taps of their largess (at the expense of the taxpayer) are turn off.
    The fact that their appointment by political infigthers engaged in corporate warfare for feeding trough access, settling of petty scores and control of the cadre economy, seems also lost on complainant and the author.
    Any scribe worth their pen would’ve “followed the money” to ascertain validity of these claims & allegations. It seems to me the classical case of spending a pound to save a penny or rather chase down a penny here, but with no interest for “4th estate”, since it’s falls outside the ambit of its political expedience.

    • Kanu Sukha says:

      A perceptive & intriguing observation .. in the context of a thoroughly corrupt ‘system’. I have held the view that a large (probably understatement !) section of the ‘legal’ fraternity has only itself to ‘blame’ for the headlong pursuit of “peanuts” (Dali) at the expense of serving ‘justice’.

  • Middle aged Mike says:

    I continue to suspect that enough of the NPA has been captured to make prosecutions against the leadership of the kleptocommies a fantasy. Really hope I’m wrong.

  • Anthony Krijger says:

    “Radical economic transformation” is just a clever word to legitimise gross thieving & wholesale plunder. Most of coastal KZN has no regular water supply. Yet dams are full. Now we have water tanker wars added to the plunder. Given these facts I’d say IFS is 100% correct.

  • Alan Watkins says:

    Sickening! Lets see if the GNU now delivers justice, or whether its just crooked and inept ANC governance by another name

  • Pet Bug says:

    Hats off to all you who read this and came out being able to formulate a comment.
    Brava|o.
    The twists and turns, and all characters crooks, deceivers and looters fried my brain.
    All for racist socialism /kleptocracy – I’m left gasping for oxygen.

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