The Minister of Police attended the meeting, at the request of the Committee, to brief and update the Committee on the situation at the Independent Complaints Investigative Directorate (IPID). The matter arose initially from the alleged involvement of the Head of the Directorate for Priority Crimes Investigation (DPCI or the Hawks) in the illegal rendition of Zimbabwean nationals. This had led to the suspension of Lieut-Gen Anwar Dramat, Head of the Hawks. It transpired that there were two reports on the matter from IPID, with the second, signed by the Executive Director of IPID, doctoring the first, which then led to the suspension of the Executive Director Mr Robert McBride also.
Werksmans Attorneys, a private law firm, was commissioned by the Minister to conduct investigation into the two IPID reports on the rendition matter and the large discrepancies between the two reports. The Minister spent two hours taking Members through each page of the comprehensive 74-page report from the private law firm. It covered the terms of reference and introduction before delving into the circumstances surrounding the compiling of each of the two IPID reports, deletion of evidence from the first report, analysis and findings of what had been included in the second IPID report, before concluding with recommendations. In summary, the Werksmans Report found that Mr McBride had altered the findings of the IPID probe and whilst the first report allegedly implicated Lieut-Gen Dramat, the second report, which was signed off by Mr McBride, cleared him. All three reports had now been placed before the National Prosecuting Authority (NPA) for a decision whether Dramat, McBride and other senior officials in IPID and the Hawks should face criminal charges. Disciplinary steps against Mr McBride would begin on 21 May 2015.
Members engaged in robust discussion with the Minister, and one Member expressed her dissatisfaction that the Acting Head of the IPID, whose fitness had been called into question by a Court recently, was in this meeting. The Committee asked for reassurance that, even in the absence of an Executive Director, the IPID would still be able to conduct proper investigations into any wrongdoings or crimes perpetrated by SAPS members. One Member queried whether the Committee had received a full and unadulterated Werksmans Report, commenting that it was littered with unprofessional mistakes.
Some Members sought clear answers on if disciplinary or criminal steps would be taken against Dramat and McBride, as per the recommendations of the report, while others were interested in the origin of the matter in Crime Intelligence. Questions were raised around the motive of very senior South Africans to conduct themselves in the ways outlined in the IPID reports. One Member said that the Werksmans Report failed to clarify the situation and in fact brought more confusion, and was inconsistent as it provided a lot of information but not particularly compelling arguments, and this was further compounded by the reliance of the report on testimonials while reference to objective evidence seemed circumstantial. An opposition Member said the larger picture needed to be kept in mind, and mentioned that this matter only came to the fore after Lieut-Gen Dramat asked for the Nkandla files, and that IPID also appeared to be being targeted unfairly, although the Minister countered that this was a matter arising long before the Nkandla matter. Another Member wanted to know why the Minister insisted on ignoring court judgements this Werksmans Report seemed to be accorded the status of a court judgment. Authority was sought for the Minister's authority to commission this Report, and the cost of it to the taxpayers, and the suggestion was made in terms that the Minister was using this Report to justify his actions ex post facto. Other questions were raised as to whether the Minister had investigated the surprising death of one of the witnesses, which was described on one occasion as surprising, yet on another, as related to natural causes. Overall, Members wanted to know what the next stages in the process would be, and although they tried to press the Minister on his reaction to the Werksmans Report recommendations, the Minister reiterated that the matter was with the National Prosecuting Authority which would, in due course, make the decision what steps should follow.
Independent Complaints Investigative Directorate (IPID) leadership
Chairperson's opening remarks
The Chairperson noted that during the budget deliberations, the issue of leadership of the various institutions in the Department of Police (SAPS) portfolio was raised. That included the leadership of the Independent Complaints Investigative Directorate (IPID). The Minister of Police had been invited to give the Committee a first-hand account of the issues. The Minister was invited last Tuesday, and the Chairperson appreciated the fact that he had made time, a week later, to be with the Committee, which showed good accountability.
The Chairperson stressed that leadership of IPID was quite important, because it was an oversight body rooted in the Constitution. It was quite critical that members of the public and community at large had confidence in the leadership of IPID.
The Committee, in its own oversight role, was also very much interested in proper management. There had been recent developments with the suspension of Mr Robert McBride, and it was very important for the Committee to get the full picture, including what actions would be taken, and within what timelines any disciplinary process might ensue.
Werksmans Attorneys Report on IPID investigations regarding illegal renditions of Zimbabwean nationals: Minister of Police briefing
Mr Nkosinathi Nhleko, Minister of Police, said that he would try to talk to the report as presented to the Committee.
He reminded Members that this matter concerned two reports - one emanating from IPID - on rendition of Zimbabwean nationals. It became necessary to establish why two reports had been drawn. Werksmans Attorneys were appointed to conduct further investigations, and specifically to probe discrepancies between the two reports.
The Minister spent two hours taking Members through each page of the comprehensive 74-page Report from Werksmans Attorneys (the Report), a private law firm. This Report covered the terms of reference and introduction, before delving into the circumstances surrounding the compiling of each of the two investigative IPID reports, deletion of evidence from the first report, analysis and findings.
In summary, the Werksmans Report found that Mr Robert McBride, now-suspended Executive Director of IPID, had altered the findings of an IPID probe into the illegal rendition of Zimbabwean nationals. The first report implicated Lieutenant General Anwar Dramat, previous Head of the SAPS Directorate for Priority Crimes Investigations (DPCI, or the Hawks) from involvement in the rendition. The second report, which was signed off by Mr McBride, cleared him. All three reports - the two from IPID and the one from Werksmans - were now with the National Prosecuting Authority (NPA), for a decision whether Dramat, McBride and other senior officials in IPID and the Hawks should face criminal charges.
The Minister outlined the processes for the future. Because this report made a number of conclusions and recommendations that affected a number of people who worked in various divisions in government, the Werksmans Report was referred, for consideration, to the NPA, the President, the Minister of Justice and the Acting Heads of the Hawks and IPID for the cited employees. In the meantime, the Minister had instituted disciplinary proceedings against Mr McBride, which would start on 21 May 2015.
The Chairperson noted IPID was a very important institution and so the Committee and the public needed the assurance that if police perpetrated crimes and were doing wrong things, there would be proper investigations and "clear blue water" between the police and IPID. The Committee needed assurances that the current Acting management of IPID would ensure this.
He also commented that the Head of Investigations of IPID was a critical post, and there should not be the situation where he and the Executive Director were not there.
He added that during the Committee’s discussion on its Budgetary Review and Recommendations Report (BRRR), Members had expressed their disappointed with certain actions by the National Commissioner of SAPS, which were then noted in the BRRR adopted last week. They would also be outlined fully in a letter that would be sent. He was aware that the Minister had established a reference group with regard to police leadership, and he sought an update on this process.
Minister Nhleko replied that the IPID was continuing its work, under Acting Executive Director, Mr Israel Kgamanyane, and it was supported at all times. A body like IPID always needed to display its independence and act in a professional manner, particularly because IPID was conducting work on behalf of the public, and therefore credibility was extremely important.
The Minister said that he was not yet fully aware of what the BRRR had set out, and he would welcome getting a full report, on which he would follow up. The Reference Group was not conducting an investigation – it was to assist the Minister in the processing and advice of specific matters that were already out there in the open discussion. The Reference Group was not trying to establish what was not known. It was important for the Minister to provide leadership and guidance on matters that were being discussed openly, so that they were properly processed, and also to be able to speak from an informed point of view. A date was still to be decided on by members of the Reference Group to sit, and for the Minister to receive the final report of the work of the Group. He stressed again that this was not to be an investigative report. For example, even the rendition matter was part of the scope of the Reference Group because allegations were made openly.
Ms A Molebatsi (ANC) thanked the Minister for the report which shed some light on the matter. She asked if Chief Investigating Officer Khuba was still at work. She also asked if there was any particular reason why the arrested Zimbabwean nationals were locked up at the police stations mentioned. Was Captain Maluleke charged as according to the recommendations?
Minister Nhleko responded that IO Khuba was still at work. It was difficult for him to provide Members with the logic behind where the Zimbabwean nationals had been locked up in those particular police stations, and more steps needed to be taken, after knowing what happened. Why exactly this had happened would be looked at in the course of any legal or disciplinary processes that might follow.
Ms L Mabija (ANC) asked if the Ministry tried to find out whether the witness involved had died of natural causes or what else could have gone wrong.
Mr P Groenewald (FF+) asked if the copies of the report received by Members were a direct copy from Werksmans Attorneys. He commented that the reports provided to Members were littered with errors, and this was very unprofessional if they were a direct copy.
Mr Groenewald sought clarity on whether Lt-Gen Dramat was going to be prosecuted or not, as the recommendations in the first reports had outlined. There had subsequently been reports that the Minister had "made a deal" with Dramat. The same question must be asked also in relation to Mr Robert McBride, and whether any criminal or disciplinary charges would be laid against him, as recommended in the report.
Minister Nhleko said it must be understood that the decision whether or not to prosecute did not lie with him but with the NPA. The report recommended that prosecution should be considered. However, only the NPA could make this decision.
Mr Groenewald understood this, but asked if the Minister supported the recommendations of the Report.
Minister Nhleko said this was now a different question. The recommendations set out in the report were formulated after going through a set of issues, interviewing people and interrogating documentation. However, he reiterated that a decision on prosecution could only be validated at the level of the NPA. This was similar to how IPID investigated matters, and then made recommendations, so it was nothing out of the ordinary.
Mr Groenewald understood that only the NPA made the final prosecuting decision. However, he pointed out that the Minister had commissioned this Werksmans Report on the two reports of IPID. Recommendations were then made. His simple question was if the Minister supported the recommendations of Werksmans? He knew the Minister could not decide on the outcome, but his question simply needed a yes or no response.
Minister Nhleko responded that the Report needed to be studied further and there were various other opinions for him to consider on specific recommendations, for example. He noted that every activity undertaken must be accounted for, so the principle of accountability and transparency was very important for him.
Mr L Twala (EFF) was interested in the origin of the report rooted in crime intelligence. One could not dispute facts, but maybe the Minister could reflect on this origin. He was beginning to question the motive of very senior South Africans taking it upon themselves to do the things outlined in this report and wondered if it was motivated out of criminality or national interest? What triggered the people to act in the manner in which it was alleged that they did? Was this explored because it put jobs at risk? These were issues on which the Committee needed to be enlightened further.
Minister Nhleko said it was not known exactly why this happened and whether it was linked to any systemic problems and again, he could not make this call. The Werksmans Report had effectively said what happened and how it happened, but it was unable to establish, at this stage, why it had happened. This could only be established through processes that were still to follow. It was important to begin asking questions about the state of our society and systems, because democratic institutions were involved, and it was the duty of policy-makers to deal with or be concerned if these institutions faltered in some or other way. South Africa also subscribed to international law so there was a need to investigate some of these matters further.
In the context of the Committee, Mr Twala had the right to point to the establishment and question what would motivate positions or sets of allegations. Crime Intelligence was cited in the report as the first unit that was "on the spot" but IPID took over the actual investigation, so the investigation had not started with Crime Intelligence. He appreciated the cooperation from the NPA in assigning officials to work on the investigations.
Mr Z Mbhele (DA) thought that the meeting would provide more clarity on these matters, but instead he commented that it was bringing even further confusion. He felt like he was in the Security Council meeting when Colin Powell motivated for invading Iraq - a lot of information was coming at him but he did not hear anything compelling to say this was the reason why things should go in a certain direction. The evidence in this report was mainly testimonials, and the problem lay with the many contradictions between the testimonials, especially on key aspects and events. Reference to objective evidence seemed entirely circumstantial - for example, the timing of communications - and he did not feel that these were convincing grounds for arriving at specific conclusions. Some points in the Report made evaluations about the materiality or non-materiality of various pieces of evidence. He was concerned that the Report said it could not ascertain who was responsible for the deletions. Surely this was the most crucial question, because it would shed some light on some discrepancies in the detail.
Mr Mbhele said that the larger picture needed to be kept in mind. This had started when the Hawks, under Lieut General Dramat, had requested the Nkandla files from SAPS. Now, in a second act to the production, when IPID failed to play its part in the ongoing drive for State capture of information, it seemed that the guns were then turned on Mr McBride. Mr Mbhele would be prepared to go out on a limb and say he was not convinced this Report, with all and entire detail, was an unaltered document from Werksmans Attorneys. To him, it appeared to say just enough, in the right tone, to seem like a credible analysis of the relevant issues. However, there were also parts where it seemed to be making unfounded value judgements, and being quite emphatic about negligence or wrong doings on the part of individuals. He did not think the report represented the end of the process because nobody was any closer to a clearer truth. The process was just getting started. He hoped that the Committee would play a key role in unpacking some of the issues and would use its powers to uncover the truth.
Mr Mbhele questioned what exactly was meant when the Report said that Mr McBride had “regard” to the report in the context of whether he knew about the first report? He also sought clarity on the phrase used that “McBride was in the centre of the rendition investigation”. When reference was made to a preliminary report, what exactly was this referring to? and was it any different from referring to the first report or the second report? There was much emphasis on who signed what, where and how. He asked if the first report was signed by the Acting Director at the time? The second report was clear about being signed by three co-signatories, but it was not clear who was the signatory of the first.
Minister Nhleko responded that all evidence had to be tested through a process. The contradictions would be examined and tested for value, through a legal process. He accepted the comment on the spelling and grammatical errors in the report, but said that this did not make the report unoriginal, and indeed it was dangerous to suggest that, because it was tantamount to saying the Minister was appearing before a Portfolio Committee of Parliament with the intention to mislead Members. This should not be said unless there was a way to substantiate the allegation. Even though there were differences in assumed positions, Members should be careful of what was said. In his brief interactions with the Member, the Minister had never experienced any deliberate negative intention from his side, and he took him quite seriously when making interventions because he did not think he was "as polluted as other people".
The Minister confirmed that any variances or differences between reports would have to be tested. Preliminary reports did not make recommendations. That was why the report from 22 January, which did contain recommendations, could be considered "a preliminary report". If recommendations to charge any individuals criminally were made to the NPA, and the National Director of Public Prosecutions (NDPP) did decide to proceed along these lines, it was not possible for anyone to reverse that process. The report of 22 January was a final, not a preliminary report.
The Minister noted that in law, and in compliance with the IPID Act, IPID would, as an institution, forward reports to the NPA if there were recommendations for prosecution. The very same report would also be forwarded to the Minister of Police, as part of the line of accountability.
The Werksmans Report illustrated that the first report (22 January) was signed only by the Chief Investigator. The second report had been signed by three individuals – Mr Khuba, Mr Sesoko and Mr McBride. These variances would be looked at.
The Minister said that when the Report said that Mr McBride " had regard to the report", this was an English way of saying he "had knowledge of it". Mr McBride could not have been at the centre of the rendition because it took place in 2010, and Mr McBride was only appointed in 2014.
Ms D Kohler Barnard (DA) said the Supreme Court of Appeal had dismissed the application of the Minister to appeal the High Court ruling that the suspension of Lieut-Gen Dramat, then Head of the Hawks, was unlawful and should be set aside. The Minister's application to appeal was dismissed, with costs, on the grounds that there was no reasonable prospect of success in this appeal and no other compelling reason why an appeal should be heard. The taxpayer essentially lost with costs, and the Minister's actions in suspending the Head of the Hawks, in contravention of a Constitutional Court ruling, was unlawful. It seemed that the Minister then went to a private law firm in an attempt to justify his unlawful action ex-post facto. Subsequently, the Minister had "forced" Lieut-Gen Dramat out of SAPS with a a golden handshake. She asked why, if the Minister was so convinced that he was right, Lieut-Gen Dramat was not arrested and taken straight to Court?
She also asked why the Minister had not waited for the NPA to make a decision first, before suspending Lieut-Gen Dramat. because the NPA was surely where the matter should lie? Additional legal opinion claimed it was entirely unacceptable, inappropriate, and probably illegal, for the Minister to commission an investigation into a matter which was already before the NPA. She pointed out that the Minister of Justice, not the Minister of Police, had responsibility for the NPA ,and even he could not intervene in a decision by the NPA on prosecution of any matter, except to ask for a progress report.
She reiterated her concern that it seemed that the Werksmans Report should never have been commissioned, and the reality was that the Minister could not rely on it to justify his actions ex-post facto. It looked as if the commissioning of the report was an effort by the Minister to salvage a situation where a court judgement went against him, even though he ignored the judgments and did not act in accordance with them. She sought an explanation from the Minister as to why he had ignored the judgments?
Ms Kohler-Barnard asked on whose authority documents were removed or copied from the NPA and given to Werksmans between February and April 2015? She asked if the actions of the Minister in commissioning this Report were in fact legal, and where his authority was for believing that this could be done? Did the Minister avoid usurping the NPA’s functions, and if he did, she wanted proof of this, citing the relevant sections and Act that granted him the right to do this. She commented that in all her years on the Committee she had never seen a Minister do as Minister Nhleko had done - detectives, yes, but a Minister never.
Ms Kohler Barnard said that the next follow-up question was whether the payment for the Werksmans Report would constitute fruitless or irregular state expenditure? She wanted to know how much did the taxpayers pay for this Report? Considering that there was a raft of lawyers working in Parliament and thousands of SAPS detectives, why had the Minister chosen to go with a private law firm? She also questioned the locus standi of a private firm to review the investigation and recommendations of IPID. This matter would surely be raised in the court, if the matter did in fact go to court. She questioned what legislation gave the Minister the authority to interfere with the recommendations of IPID by appointing private attorneys to report back to him?
Ms Kohler-Barnard noted that she had not heard the Minister condemn the actions of the Zimbabwean police, who were claimed over and over again to have tortured and murdered fellow Zimbabweans. She suggested he use this platform here and now to do so.
Ms Kohler-Barnard noted that the Pretoria High Court had ruled the appointment of the person the Minister referred to as "the Acting Head of the Hawks" to be unlawful and one that should be set aside, yet he was sitting in the meeting. The North Gauteng Court further ruled that this unlawful Acting Head of the Hawks, was “biased, dishonest and lacking in integrity and honour” – and so she was astounded that this individual was present in the meeting.
Ms Kohler-Barnard asked which of the reports the Minister had used as the basis to suspend Lieut-Gen Dramat? On 23 December 2014, the Minister’s spokesperson, Mr Musa Zondi, said Lieut-Gen Dramat’s suspension was a result of IPID recommendations. Now, because the "official" IPID recommendations did not recommend any suspension, discipline or prosecution of Dramat, she asked if this indicated that the Minister’s spokesperson was mistaken, lying or deliberately misleading the public?
Ms Kohler-Barnard requested with what legal right did the Minister demand the docket from IPID on 24 December 2014, as she believed that this was not allowed by any law. She asked why the Minister had – misled Parliament by coming in front of this very Committee, saying witnesses to this matter had died in mysterious circumstances? One witness actually died of natural causes, with nothing mysterious about it, yet the Minister led the Committee to believe that somehow witnesses were being "eliminated".
Ms Kohler-Barnard asked if the Minister was aware of IPID regulation 5 (3) (i) that negated the status of any report or recommendation that did not come from the Executive Director or provincial head? Now that the Minister had forced the Head of the Hawks out, she wondered if the matter would go to court, because the Report was nothing like a judgement, even though it was being afforded that kind of status? It was a report by private lawyers answering to a client. If the Minister was so convinced today that Dramat was guilty, she reiterated her question why he had not been immediately arrested instead of being given a golden handshake?
Minister Nhleko indicated that it was true the Werksmans Report was not a judgement of any sort and this was why it made recommendations, while judgements made orders. There were no orders in the Report. His assumption was that people were innocent until subjected to particular processes to arrive at a correct decision. He had not acted unlawfully, precisely because he did not reply on deleted sections of the SAPS Act, and even the courts the Member referred to knew this. The court had also said, in the judgement, that it could not find any basis for attacking, for example, the Minister’s right to suspend the Head of the DPCI. This acknowledged the oversight responsibility of the Minister. He did not know of any law that said a Minister could not commission an inquiry. The manner in which inquiries or investigations were structured and conducted were important because there was nothing else to achieve other than objectivity, independence and credibility.
The Minister said that he had appointed Werksmans Attorneys, because they were professional (regardless of the spelling and grammatical errors in their Report) and the firm had to defend and uphold its reputation, they could be relied upon to conduct a credible exercise to empower the Minister to deal with this particular matter.
The Minister noted that his allusion to witnesses were dying "mysteriously" was based on the fact that LCol Madilonga got an instruction to come and attend something in Cape Town, and although he had left Limpopo alive and well, he was dead three days later. He was trying to make the point that potential witnesses could get lost in the process, if issues were not addressed timeously. He did not have the actual text of what he said in a previous engagement with the Committee. He was happy that some issues which were previously uncertain were now coming to light.
The Minister said, in relation to the court judgment, that a number of things were said. He disagreed with some of the judgements, but this was all in due process of law.
The Minister said that this was not about Nkandla. All Members had been present when the matter arose, based on a 2012 Parliamentary Question from COPE, long before the Nkandla matter. He suggested that if Nkandla was not suggested as the reason for this, then another serious matter would be used as the reason. This Report showed that the thinking had to change. There were now statements, witnesses and affidavits to state what happened, and facts of what transpired. None of these made reference to Nkandla.
Ms Kohler-Barnard pointed out that the Minister had said that those mentioned in the Report must be considered to be innocent until proven in a court of law to be guilty. However, the Head of the Hawks was "drummed out and suspended" just after asking for the Nkandla reports. He was never reinstated and was even apparently locked out of the office after the locks were changed. How could the Minister then assert that this individual was being treated as innocent until proven guilty? The Minister came before Members to ask the Committee to fire Lieut-Gen Dramat and when the Committee had refused, he went through the back-door to do it another way. She disagreed with his assertion of assumptions of innocence.
Minister Nhleko felt this was a wrong starting point, and seemed to indicate that Ms Kohler-Barnard had already made up her mind. Firstly, no one had been "drummed out" - even the individuals would confirm this. The fact was that allegations needed to be further looked into, through an investigation, for full protection of the individuals and the institution. It was important the investigation happened when the individual was not there, so that there were no allegations of interference and in order to insulate investigating sources. This was the reason for the suspensions, not because someone was found guilty.
Ms Mabija indicated that Ms Kohler Barnard was responding to one of her questions posed. Natural death could still be investigated. She asked if the Minister was investigating the cause of death of the witness, because although the death was stated as natural causes, it was possible that it could be something else.
Minister Nhleko suspected that the work and conduct that continued on this matter could perhaps look at this issue. He had not specifically looked into it. It really depended on what came out from other further processes.
In respect of the renditions, the Minister hoped that this would not happen again, particularly given the reputation South Africa for making efforts and having aspirations for a humane society based on human rights, particularly to try to redress apartheid history. He hoped incidents and allegations of this nature did not happen again.
Mr Mbhele noted that one of his questions had not been responded to - namely, was the first report signed by the Acting Director at the time? He wanted to understand why, if the report was not signed by the Acting Director, and only by the chief investigator. He also asked what was meant in the report when it made reference to “McBride in his capacity of executive director, is in the centre of the rendition investigation”.
Minister Nhleko explained this referred to the centrality of McBride to the investigation, and not the rendition itself as the act in question. He confirmed that the first report was signed by the Investigating Officer. The second report was signed by Khuba, McBride and Sesoko. He could not say why the IPID Acting Director (0-(prior to McBride) did not sign the first report, or whether this was a material breach of any sort. Two officials from the NPA worked with IPID on the first report, but their brief was not related to taking a decision to prosecute or not.
Ms Kohler-Barnard commented that the Minister had merely ignored most of her questions. She still wanted to know what this exercise was costing tax payers. She asked again why Werksmans was used when there were plenty of other lawyers available to be used? What were the taxpayers facing by way of a Werksmans bill?
Minister Nhleko replied that there was no bill before him currently, and the Werksmans Report only came out a week ago.
The Chairperson thought the interaction today proved that Constitutional democracy was alive and well in South Africa. The Committee had shown that it would exercise oversight. There had been prompt responses by the Executive. If there were topical and current issues, it was vital for the Executive to come to Parliament, so the Minister's actions were positive and set a very good example for other Committees. The Committee took note of the input and report and welcomed the approach for proper processes and investigations in terms of disciplinary and NPA steps. There must be transparency and stability in the oversight fraternity.
The Chairperson confirmed that the Committee was concerned by what was occurring in the NPA, but this was a matter for the Portfolio Committee on Justice and Constitutional Development to look at. The Committee would keep an eye on processes and would await the outcome from the legal process.
The meeting was adjourned.
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