The Public Protector was invited by the Committee to brief it on the improper visit to her offices last week by two members of the South African Police Services (SAPS) counter intelligence. This came in the wake of the release of her report that found the R500 million SAPS headquarters lease was unlawful and invalid. The Committee was divided on the role played by the media about the visit by Crime Intelligence of the South African Police Service to the Office of the Public Protector. Some Members were of the opinion that the media had sensationalised the situation and had incorrectly labelled what had occurred as a raid instead of a visit. Other Members were of the opinion that it was incorrect to say that the matter had been sensationalised. The Committee was unanimous in the view that Chapter 9 institutions were independent and subject only to the Constitution and the law. The Chapter 9 institutions were directly comparable to the judiciary and that organs of state including the police must protect the Public Protector’s independence. The Committee thus concluded that the actions of the police were irregular, amounted to intimidation and undermined the independence of the judiciary and posed a serious threat to South Africa’s democracy.
It was pointed out that by the Committee that Section 7(2) and Section 9 of the Public Protector Act may have been infringed and penalties ensuing from this were either a R40 000 fine or imprisonment for a term of 12 months. The Committee commended the conduct, action and judgment of the Public Protector and her staff. Members repeatedly assured the Public Protector that her Office had the full backing of Parliament. The Committee welcomed the condemnation of the actions of the police officers by the head of Crime Intelligence and the National Police Commissioner.
The Chairperson welcomed the Public Protector and stated that the Chapter 9 institutions were created so that the constitutional democracy in South Africa could be strengthened. The Chapter 9 institutions were independent and subject only to the Constitution and the law. The Chapter 9 institutions were obliged to exercise their powers and perform their functions without fear, favour or prejudice. More importantly other organs of state had to assist and protect the Chapter 9 institutions in order to ensure their independence, impartiality, dignity and their effectiveness. No person, organ of state may interfere with the function of these institutions of which the Public Protector was part. Committee Members have often made the point that the integrity, dignity and effectiveness of the Office of the Public Protector was crucial to democracy and anything or anyone who tried to impede this should be dealt with. Most had seen and read in the media the events that took place at the Office of the Public Protector. The Committee was charged with the accountability of the Public Protector. This rendered it necessary to request the Public Protector to inform the Committee what had happened. The Committee would not be dealing with the Public Protector’s Report; anyone who attempted to do so would be called to order.
Public Protector presentation
The Public Protector explained the chronology of events leading up to the incident:
The Sunday Times published an article, alleging improper conduct and maladministration by the National Commissioner in the R500 million lease for the Sanlam Middestad Building in Pretoria
•2 August 2010
Mr Paul Hoffmann of the Institute of Accountability in Southern Africa and Mr Pieter Groenewald of the Freeedom Front Plus requested the Public Protector to investigate the allegations.
•3 August 2010
The Public Protector (PP) asked the SAPS and Department of Public Works (DPW) to suspend the lease pending the outcome of her investigation.
•10 August 2010
Both SAPS and DPW responded, undertaking to heed the PP’s request. DPW further indicated that the various role players involved had been advised about the suspension of the lease agreement.
•11 & 19 October 2010-
The DPW Director-General informed the National Commissioner that the lease was invalid and a new process ought to be initiated. This was based on findings of an internal inquiry and independent legal advice.
•25 October 2010
The PP issued a preliminary report and informed the National Commissioner of her concurrence with the decision of the DPW to commence with a new process. The preliminary report was presented to the Executive Authorities and Accounting Officers of SAPS and DPW.
•31 October 2010
The former Minister of Public Works, Mr Geoff Doidge, was replaced by Ms Gwen Mahlangu-Nkabinde.
The Minister’s Office had obtained an informal opinion from the State Attorney, indicating that the lease was enforceable, subject to the further legal opinion of a senior counsel.
•22 November 2010
The opinion of the senior counsel concluded that the contract between DPW and Roux Property Fund (RPF) was unlawful, rendering the lease invalid. DPW advised Nedbank that it was continuing with the lease.
•7 December 2010
Minister Mahlangu-Nkabinde announced publicly that DPW was continuing with the lease agreement. At the same time, the DPW Director-General was suspended.
The PP’s draft report was distributed to all relevant parties for their comments.
Comments were received from all parties involved.
•21 February 2011
The PP wrote to the SAPS in Durban, requesting documents relating to the alleged procurement of office accommodation.
•22 February 2011
The PP released her findings during a media briefing in Pretoria.
•24 February 2011
The National Commissioner held a press conference in which he welcomed the report but refuted the findings against him.
•28 February 2011
The PP received a response from the National Commissioner, saying SAPS could not meet the deadline for delivery of the documents.
•1 March 2011
The PP received correspondence from the National Commissioner’s office, indicating that they would submit the requested documents the following day.
•2 March 2011
The PP received the documents from SAPS in Durban.
On that same day, 2 counter intelligence officials visited the PP’s Pretoria Office unannounced. They investigated “information leaks from within the SAPS” and ask if the memos shown in the Sunday Times articles formed part of the PP’s report.
•3 March 2011
The SAPS released a statement, distancing itself from the visit of the two counter intelligence officials.
There was a public outcry over the so called “raid” of the PP.
•4 March 2011
The National Commissioner called the PP to apologise and vowed to launch an investigation into the matter. A police brigadier commenced investigations into the matter and took statements from the PP personnel who came into contact with counter intelligence officials.
Mr J Jeffery (ANC) said that this kind of interaction was important, given the publicity. It was worrying that the matter has been sensationalized. The PP has said that it was a visit and not a raid. Was the visit unlawful in the PP’s opinion, if so why did the staff of the PP not ask the police to leave? Was the staff indeed traumatised? There was a report in the Sunday Times that said that the police officers ‘wanted to grill Madonsela and her staff’, was this in fact correct? The question would be: was this a raid?
Ms Madonsela replied that her staff had been traumatised by the visit. The staff has been anxious to know if the PP was fighting with the police or if they were angry at the institution. An example that demonstrated this point was that yesterday, a staff member at reception had received documents from intelligence that were supposed to go to another staff member for vetting. This staff member had rushed to the PP’s office and said ‘I don’t know what’s happening and please excuse my paranoia but I have to give this to you’. The situation was such that the Chief Executive Officer of the PP had been requested to circulate a memo to staff at PP offices around the country to reassure them that work should continue as normal. This incident has destabilised the staff. Only a court of law could determine unlawfulness. When one was investigated by Intelligence there had to be some kind of authorisation because this was from crime-intelligence. When the police came to the office, the staff were reluctant to give them the documents. The approach of the PP was it had nothing to hide and what the police officers wanted had already been given to the police and there was no reason to not give it to them again. The PP was of the opinion that the visit was inappropriate and that the police should have written to the institution informing them of an investigation. When the PP was conducting an investigation on a public entity it wrote letters and did not simply show up at its doorstep. The PP subsequently wrote a letter to the National Police Commissioner requesting more information as to what was happening and that in future it should be informed ahead of time that there were certain things taking place in order for the PP to cooperate. The PP did not request the police to leave as this would have been rude and would have created more chaos.
Mr Jeffery referred to the Sunday Times article that the police wanted to grill the PP and staff. Did the PP know anything about this?
Ms Madonsela replied that the police did not ask to speak to her but to the spokesperson of the institution to ask questions about the documents that they indicated had been leaked to the Sunday Times.
Mr Jeffery followed up by asking if the spokesperson of the PP had felt that she had been grilled.
Ms Madonsela replied that the spokesperson would not have used that term but it did create a situation that had cause for concern because the police arrived at reception, requested to speak to the spokesperson and when they started asking questions the other staff called the PP urgently out of a meeting. There was a sense that the spokesperson would be asked questions that she knew nothing about.
Mr Jeffery said that the conduct from the police was inappropriate but the point was that there were two members of the police who were asking questions. Did the other staff members of the PP feel coerced, were the police polite?
Ms Madonsela replied that the police were polite but police officers derived their force from the authority they carried. The staff was essentially divided between the police and the PP because they asked if they should answer the questions. The response from the PP was that there should be no interference; if the police wanted to ask questions then they should do so.
Mr Jeffery said that it was appropriate that there has been an investigation and the police officers responsible have been suspended in addition to the wrongfulness of the visit, given the timing of the report that had been released. However the concern (and this was not the fault of the PP or her office) was the way that this has been sensationalised: the raid. Quite clearly this was not a raid. A raid implied an attempt to use force or gain information through force or give it involuntarily. A raid was not an unsolicited visit. The situation was not helped by the fact that the police themselves spoke of a raid afterwards. How this was carried on in the media was a concern and the Sunday Times article was not correct. The Mail and Guardian clarified the issue by stating that it was a visit and not a raid. Business Day also referred to a raid by police crime intelligence on the Office of the Public Protector. This was a continuation that resulted in sensationalised perceptions that this amounted to an attack on democracy. It would appear that the visit was inappropriate; it was good that the officers involved had been suspended and there was an investigation. An appeal to the media was for them not to sensationalise.
Ms D Schafer (DA) said that it was disingenuous of Mr Jeffery to state that the media had sensationalised this matter as it was clearly designed to intimidate the Public Protector. This undermined a Chapter 9 institution that the DA had been cheering for a long time. The circumstances surrounding what happened should not be underestimated; this was a very serious situation. The Chapter 9 institutions were directly comparable to the judiciary and this was akin to visiting a judge in chambers to try and access documentation pertinent to a trial. It has been concerning to note the number of appointments of individuals deployed to do their master’s biding where, if they did not, then they would not serve in those positions for very long. The DA wholeheartedly commended the PP’s performance in carrying out her duties. It was clear from preceding and subsequent events that the independence of the PP was under threat and it was a concern that Mr Jeffery was trying to trivialise this event. If incumbents did not act in a way that was acceptable to the ruling party then they were persuaded to do so via other means. The Committee had to protect the PP in this situation. The events as presented by the PP were extremely worrying. Former Minister of Public Works, Mr Jeff Doidge, took action on this clearly unlawful lease matter by referring it to the PP and the Special Investigating Unit in a matter that had cost the tax payer an additional R75 million over the ten years of the lease agreement. Incoming Minister of Public Works, Ms Gwen Mahlangu-Nkabinde, acted unlawfully when she ignored the opinions of two counsel that the deal was illegal. Did the police specify the crime that they were investigating since leaking a document was not unlawful? The intention was clearly the intimidation of the PP, which had worked as the staff of the PP was now traumatised. The Committee had to protect the PP and when the Office of the Public Protectr acted in an independent manner, nobody should be allowed to interfere and intimidate them. The country’s democracy had to be protected otherwise we would be on a slippery slope towards a failed state.
Mr A Swart (ACDP) said that Mr Jeffery’s comments were wholly inappropriate and indeed disingenuous. The Committee had to ensure that it dealt with matters that were in front of it. It was clear that the PP’s job was to investigate improper conduct in state affairs. Organs of state including the police must protect the PP’s independence. The PP was central to our democracy and it was a crucial instrument against corruption and maladministration. Adv Madonsela had show tremendous courage in carrying out her mandate and completing the report relating to the lease agreement involving National Police Commissioner, General Bheki Cele. This clearly did not make any friends. It was clear that this raid/visit was not a wanton act by overzealous officers, it was directly linked to the PP’s finding. The PP had to carry out its functions without fear of intimidation or reprisal. It was disgraceful that the staff of the PP was traumatised. The ACDP welcomed the condemnation of the police’s actions by General Cele. However if he was not involved in this, it was concerning that it seemed “we have a wild intelligence unit which was privy to state secrets and capable of undermining other state organs”. How could the police officials not know that the documents they were requesting came from the police themselves? This indicated an agenda to intimidate the PP. The Committee would like to assure the PP that it had the necessary support and protection from Parliament. The ACDP had already sent a letter to the Independent Complaints Directorate requesting an investigation and swift accountability of those responsible.
Dr Oriani-Ambrosini (IFP) said that the Committee, most of whose Members were lawyers, had to find out what happened through the lens of the law. Things in the media tended to be portrayed in a certain way. A raid was tantamount to search and seizure and either one had a warrant or not. A raid was usually an unwarranted search and seizure process, which was illegal. Police members knocking on a door, entering with consent was not a raid. Obviously since the PP was involved, one had to be sensitive, especially if the situation was created with an intention to intimidate. It had to be discovered who was behind the intimidation. The PP had the constitutional responsibility to take on government: it was power against power. It was thus expected that the PP would be tough and in such a situation tell the police officers to leave and come back with a warrant. That was what a citizen would do. It was important for the Committee to react to the intimidation in order not to allow even the smallest amount of intimidation of such an institution. This was not the end of democracy as characterised by some individuals.
Ms S Sithole (ANC) congratulated the PP for taking charge of the situation and dealing with it in a fit and proper manner. This was a victory for the Women’s League, which has long held that women could do the work required of them. This was an example that the ANC puts women in positions not because of affirmative action but because they were capable.
Ms S Smuts (DA) said that the wording of Section 181 of the Constitution echoed verbatim the provisions that described the status and independence of the courts. This was how highly elected the independence of Chapter 9 institutions was. The Committee and every other organ of state had a duty and were under an injunction to protect, respect and not interfere with the Chapter 9 institutions. Since the PP was directly comparable to a court of law, what would the Committee have thought if this had happened to a court of law? Such action would have constituted contempt. This was an offence against the PP and carried a fine of R40 000 or 12 months imprisonment. Even if this was not contempt, it was surely interference, which had similar penalties. There was paranoia about leaks and information peddling within government. This was clear from the ruling party’s discussion documents. This whole situation emanated from this. It should not be forgotten what the Reverend Frank Chicane had said that there was a problematic situation in South Africa where comrades divulged information to other comrades as if they were above the law. There was a real problem when police crime intelligence could simply go down the road and demand who had leaked documents. This was interference and somebody should be fined R40 000, go to jail or face both punitive measures.
Mr J Sibanyoni (ANC) said that in the past under the apartheid era, freedom songs were sung about the police who had intimidating authority. He asked the Public Protector, since things were different post-democracy, had her staff been afraid of the police when they arrived.
Adv S Holomisa (ANC) said that his first reaction after receiving notice of the meeting was why there had to be a meeting. The PP had already said that the police had paid a “visit” and asked for documents. The Police Commissioner had also already apologised for the stupidity of the police officers who requested documents that were already in the possession of the South African Police Service (SAPS). The PP, until asked by Mr Jeffery, did not find it necessary to say that her staff were traumatised. It was not as if the police came with guns blazing and kicking doors, as reported by the media. It was not necessary and it should not be necessary in future to hold meetings on matters that were under control. The Chapter 9 institutions should be equipped with resources to protect themselves when challenged. The manner in which the PP handled the matter was commendable. Mr Jeffery’s concerns were agreeable and the matter had indeed been exaggerated and sensationalised.
Public Protector Madonsela replied that she appreciated the fact that the Committee had taken time to hold a meeting about this. The National Police Commissioner, when he called her, did condemn the actions of the police officers and he took the matter seriously. The praise from the Members was also welcome. The PP had decided not to draw a conclusion on the matter. The PP could have sent the officers back and requested they return with a warrant. The staff members, most of whom were lawyers, were of the opinion that the officers should come back with a warrant. The PP however had decided to act under the auspice of the principle of comply and complain, which the PP did via a letter to the National Police Commissioner. The PP was glad that the Committee was aware that the word ‘raid’ was not used by the PP but by the police in their initial media statement via their spokesperson. What was disconcerting to the staff was that the visit happened during the middle of an investigation after the PP had requested documents. The feeling was that one could not conduct an investigation with shadows on one’s back. The staff were not afraid of the police as until now SAPS had worked well with the PP and provided support and protection. The gist of the visit was: the Sunday Times had the documents, which were leaked, did the PP have the leaked documents? The South African Police Services (SAPS) could have also leaked the documents because they had them as well. The visit was strange. The immediate reaction by SAPS on the matter was commendable and the PP wanted to put the matter behind it and continue the working relationship with SAPS.
The Chairperson concluded by commenting that a situation where the PP marched to the offices of the police or the Department of Public Works during the investigation into the lease agreement was inconceivable. The visit that had occurred was an outrage. Why could SAPS not have communicated in written form or via telephone to ascertain whether the PP had leaked the documents? There was an injunction on the other organs of state and Parliament to protect and uphold the independence of the Chapter 9 institutions. The condemnation of this incident from the National Police Commissioner and head of crime intelligence was noted and welcomed. This view was also shared by Mr Jackson Mthembu who was the spokesperson of the ANC. Perhaps the investigation might ascertain that there may have been intimidation. The Office of the Public Protector should take back with them the message that they had Parliament’s full backing and support. It would be interesting to know if the investigation would determine that Section 7(2) and Section 9 of the Public Protector Act had been infringed, it may well have been.
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