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Spy unit: Why would the Hawks probe something that is not a crime?


Pierre de Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he is head of the Department of Public Law. He writes a blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

This week Hawks Head Berning Ntlemeza confirmed that the supposed anti-corruption unit is investigating a case concerning the alleged illegal operations by a “rogue spy unit” within the South African Revenue Service (SARS). It is unclear what the legal basis is for the Hawks investigation relating to the establishment of such a unit by SARS as relevant legislation does not create any criminal offences that the Hawks would be entitled to investigate.

When former apartheid cop and now head of the Hawks, Berning Ntlemeza, confirmed that the Hawks are investigating the “illegal operation” of the “rogue spy unit” within SARS he did not refer to the specific crimes being investigated, nor to the specific sections of the relevant legislation which supposedly created criminal offences allegedly breached by SARS officials when it created the unit.

Ntlemeza, an apartheid-era cop, is not uncontroversial and has a serious credibility problem. Last year High Court judge Elias Matojane found that Ntlemeza had lied repeatedly in his bid to oppose a ruling in favour of Gauteng Hawks head Shadrack Sibiya.

In my view, the conduct of the third respondent (Ntlemeza) shows that he is biased and dishonest. To further show that the third respondent is dishonest and lacks integrity and honour, he made false statements under oath.”

Suspicions about motives behind the investigation centres on the alleged “capturing” of SARS by corrupt businessmen, associated with or perceived to be aligned to President Jacob Zuma.

This week Max du Preez alleged that a key reason for the hostility in certain circles against finance minister Pravin Gordhan is a dossier in the safe at SARS headquarters “containing dynamite allegations of corruption, fraud, front companies and foreign bank accounts against prominent benefactors of President Jacob Zuma”. Du Preez alleges: “Several billions of rands are at stake and Zuma would be extremely embarrassed if the alleged dossier were to be acted upon. It could well open him up to prosecution himself and/or to a massive income tax bill – at least for evading donations tax.”

As there are so many claims and counterclaims made by so many shady and untrustworthy people about the“rogue spy unit”, I am not in a position to assess which of these factual claims may be true and which false. However, I am in a position to assess whether the Hawks are legally entitled to investigate the establishment or activities of the unit.

The so-called Sikhakhane Report into the conduct of a SARS official (Johan van Loggerenberg), compiled by advocate Muzi Sikhakhane and advocate Patrick Ramano, provides some hints as to the possible legal basis for any criminal investigation into the establishment of the “rogue spy unit” by SARS.

The report notes that the National Strategic Intelligence Act 39 of 1994 regulates the functioning of intelligence structures in South Africa and asserts (without referring to any provisions in the act and without analysis of its wording) that the act prohibits the conducting of covert intelligence gathering inside South Africa by structures other than the South African National Defence Force the South African Police Service and the State Security Agency.

Apparently a report compiled by KPMG (leaked to some newspapers but which officially remains secret) also found that the “rogue spy unit” was established unlawfully. But as the report has never been made public, it is not clear what the legal basis (if any) of such a finding might have been. The status of the KPMG report is also in dispute as KPMG has issued a statement claiming the report was only in draft form.

A perusal of the National Strategic Intelligence Act suggests that the Sikhakhane Report may have relied on section 3 of the act to come to the conclusion that the establishment of the unit by SARS was unlawful.

This section allows any state department empowered to do so by legislation “to gather departmental intelligence, and to evaluate, correlate and interpret such intelligence for the purpose of discharging such function” provided that the department “shall not gather departmental intelligence within the Republic in a covert manner”.

Departmental intelligence” is defined by the act as “intelligence about any threat or potential threat to the national security and stability of the Republic which falls within the functions of a department of state, and includes intelligence needed by such department in order to neutralise such a threat”.

This means the National Strategic Intelligence Act does not prohibit a government entity such as SARS from gathering intelligence, even covertly. It does confirm that the covert gathering of “departmental intelligence” (intelligence relating to a potential threat to the national security and stability of South Africa) by SARS would be in breach of the act.

It is unclear whether even the most outlandish allegations levelled at the “rogue spy unit” contains any suggestion that it investigated potential threats to national security in contravention of the provisions of the act. In the absence of credible allegations, the claims that the unit acted in contravention of the National Strategic Intelligence Act would be a legal nonsense.

But even if we assume that such allegations have been made and that there may at least be some evidence that the unit investigated threats to national security in contravention of the act, there is no legal basis for the Hawks to investigate whether the unit was legally established or not. This is because the Hawks can only investigate criminal offences, notably priority crimes.

However, the act does not create any criminal offences. This is significant, as an act that prohibits conduct but does not state that it constitutes a criminal offence does not create criminal offences.

Not all unlawful acts are criminal. For example, a by-law that prohibits a homeowner from allowing a tree in his or her garden to encroach on the property of a neighbour may not create a criminal offence and the owner could then not be arrested and imprisoned for acting unlawfully. But the owner may be ordered to comply with the provisions of the act.

Given that the act does allow departments to gather certain types of intelligence, the establishment of the unit could not possibly have been unlawful. However, some of the actions taken by members of the unit could unlawfully have contravened section 3 of the act.

If any member of SARS acted in breach of section 3 of the National Strategic Intelligence Act and covertly gathered intelligence about threats to South Africa’s national security, the SARS official would be acting unlawfully but would not be committing a criminal offence. It would therefore be unlawful for the Hawks to investigate this as the Hawks are not authorised to investigate non-criminal activities.

Most of the questions sent to Minister Pravin Gordhan by General Berning Ntlemeza relate to the establishment of the “rogue spy unit”, which suggest the Hawks are investigating something that does not constitute a crime. The question that arises is why the Hawks would be investigating something it is not legally authorised to investigate.

This does not mean anyone who authorised the possible breach of section 3 of the National Strategic Intelligence Act should not be held accountable. If government officials or politicians flouted the law, appropriate action should be taken against them. But the Hawks would not be the appropriate body to investigate such breaches as if they constitute a criminal offence.

However, the Hawks are not only investigating the establishment of the “rogue spy unit”. It is also apparently investigating allegations made by two former SARS officials, Helgard Lombard and Johan de Waal, who claim that former SARS commissioner Ivan Pillay authorised “Operation Sunday Evenings” to spy on Vusi Pikoli and other NPA members, among other things by the bugging or installation of sophisticated surveillance equipment at the NPA Offices.

Lombard was not a member of the “spy unit”, but of a SARS unit that investigated its own officials suspected of corruption.

The alleged bugging and recording of conversations at the NPA offices without legal permission would constitute a serious criminal offence in terms of provisions of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002. Arguably the Hawks would be mandated to investigate any criminal activity relating to this act.

If the Hawks had sent questions to the relevant person in charge of SARS when the alleged bugging took place, this arguably would have been within its mandate.

Judging from the questions sent to Minister Pravin Gordhan, the Hawks investigation seem to be conflating two legal issues. On the one hand, inexplicably, it seems to be asking questions about the establishment of the alleged “rogue spy unit”. On the other hand, it is asking valid question about the possible criminal activity relating to the illegal bugging of conversations.

The Hawks need to clarify the legal mandate in terms of which it is investigating a noncriminal matter. In the absence of a credible explanation (and in the light of the findings of dishonesty on the part of the Hawks head who also happens to be an apartheid cop) serious questions arise about the credibility as well as about the legality of the Hawks investigation. DM


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The Spy Bill: An autocratic roadmap to State Capture 2.0

Join Heidi Swart in conversation with Anton Harber and Marianne Merten as they discuss a concerning push to pass a controversial “Spy Bill” into law by May 2024. Tues 5 Dec at 12pm, live, online and free of charge.