The joint meeting between the Portfolio Committee on Justice and Correctional Services and the Portfolio Committee on Police was called because the previous week Lt Gen Yoliswa Matakata, Acting Head, Directorate for Priority Crime Investigation had informed the Police Portfolio Committee that the National Prosecuting Authority (NPA) was hindering progress in the investigation and prosecution of offences related to state capture.
Chairperson Beukman outlined the obligations of Parliament under the Constitution and to hold executive organs of state accountable for the exercise of executive authority.
NPA Head Shaun Abrahams stated it as unfortunate that Lt Gen Matakata had felt it necessary to publicly state the NPA was hindering investigations. He assured the Committee the NPA did not hinder any investigations and that the NPA and DPCI enjoy a collegial and good working relationship. The NPA had made substantial progress in investigating state capture allegations. A number of prosecutor guided investigations had been established between DPCI and the NPA. Asset forfeiture and preservation orders had been obtained in a number of matters. The NPA had also divided the state capture investigations into eight different legs, all of which are ongoing. Adv Abrahams refused to comment on the merits or progress of the investigations as he felt it would jeopardize the investigations and be improper for him to do so. He stated that Lt Gen Matakata had not raised any issues with him personally, and the first time he had heard of any assertion that the NPA was hindering the investigations or the work of DPCI was when she briefed the Portfolio Committee on Police the previous week.
Hawks Acting Head Lt Gen Yoliswa Matakata clarified that any perception that she has attempted to throw Adv Abrahams under the bus is completely incorrect. The delay by the NPA is the general public perception. There is also a public perception that DPCI and NPA are headed for a public standoff. Both of those perceptions are incorrect.
In response, Members were highly critical of the work done by the NPA and the Hawks generally. Various members questioned the competence and even integrity of Adv Abrahams. There was a general perception that both Adv Abrahams and the NPA are politically captured and lack independence. A decision was taken at the end of the meeting that – given the combative and defensive attitude taken by Adv Abrahams – and the inadequacy of his responses generally, that the meeting be postponed to a later date. The relevant Ministers should also attend to get to the bottom of what stumbling blocks exist in investigating and prosecuting state capture related offences.
Ms Molebatsi (ANC) stated that justice delayed is justice denied. Whilst Lt Gen Matakata did not expressly state the NPA was hindering the investigations there was a perception that was the case. Mr Maake (ANC) felt DPCI presentation was inadequate as compared to the one given by the NPA. It also appeared there was a lack of proper coordination between the NPA and DPCI. This comment was endorsed by Mr Horn (DA), Ms Kohler Barnard (DA) and Mr Ramatlakane (ANC). Mr Horn stated the NPA appeared to have been dragging their feet from the outset. The NPA and police only decided to take any action at the end of the 2017 and beginning of 2018. If both institutions took state capture seriously then they would have acted much sooner.
Adv Breytenbach (DA) had harsh words for the NPA, Adv Abrahams and DPCI. All institutions failed completely to take appropriate measures to prevent suspects from fleeing the country, and the work done by the NPA was lacklustre at best. The NPA and DPCI only took action when President Zuma was no longer the president of the country. Adv Abrahams behaved in a disgraceful manner by effectively throwing Lt Gen Matakata under the bus. She had never seen such conduct during her time as a prosecutor and was appalled by his conduct.
Ms Kohler Barnard agreed with Adv Breytenbach. The NPA and DPCI had completely bungled the entire investigation and had permitted the suspects – inclusive of the Gupta family – to escape on their watch. As raised by Mr Horn it was shocking for the NPA to give the excuse that they did not proceed earlier because a number of their members were on holiday during the festive season.
Mr Mulaudzi (EFF) stated there is a public perception the NPA is politically captured and compromised. The NPA was very quick to charge both former Finance Minister Gordhan and Adv Breytenbach on trumped up charges, yet deliberately dragged their feet when it came to charging prominent politicians or those connected to state capture. Mr Mulaudzi noted with extreme concern that Adv Abrahams felt it was improper for Lt Gen Matakata to raise very public concerns about the NPA in a public forum such as Parliament. Mr Mhlongo (EFF) stated the country has become a lawless society and that – in part – this was caused by the disbanding of the Scorpions. It was clear that there was political interference in the investigation from the outset and that the Gupta family were afforded sufficient time to escape and were not properly monitored by law enforcement.
Mr Mbhele (DA) and Chairperson Motshekga (ANC) were unconvinced by Adv Abrahams response that an arrest could only take place when a prima facie case – as opposed to a reasonable suspicion – was present. This view was echoed by Adv Breytenbach. Mr Ramatlakane (ANC) felt that the coordinated approach between the NPA and DPCI was not effective or the two institutions were not really coordinated.
Overall, Adv Abrahams adopted a defensive and combative approach to questioning and suggestions that he or the NPA may be politically captured or lack independence. He declined to comment on the merits of various matters as he felt it would be improper. He declined to comment on other matters as he felt those matters should rather be addressed by the lead prosecutors or investigators.
The Committees expressed frustration with Adv Abrahams and felt he was unable to take responsibility for the leadership of the NPA and its shortcomings about state capture investigations. The Members felt his answers were vague and unsatisfactory in most respects. In other instances, Chairperson Motshekga had to continually request Adv Abrahams to refrain from lecturing the Committee on NPA processes and provide clear answers to perceptions that the NPA was politically comprised and suffered from a lack of independence.
In the end the meeting was adjourned as the Committees felt they were making insufficient progress in resolving the stumbling blocks that exist between the NPA and DPCI in investigating and prosecuting state capture. A later date would set to engage the Ministers, the NPA and DPCI to properly resolve this.
Chairperson Beukman said that this was the first joint meeting between the Portfolio Committees on Police and Justice and Correctional Services. Dr Motshekga said it would it be the first of many joint meetings to come on the prosecution of state capture offences.
Adv Shaun Abrahams, National Director of Public Prosecutions (NDPP) of the National Prosecuting Authority and Lt Gen Yoliswa Matakata, Acting Head, Directorate for Priority Crime Investigations (DPCI or the Hawks) were welcomed.
Chairperson Beukman outlined the purpose of the meeting and the governing legislative framework which outlines the powers, duties and functions of the NPA and DPCI respectively.
Chapter 4 of the Constitution section 42(3) states the duties imposed on the National Assembly to oversee and scrutinise executive action which was the focus of the meeting. Rule 227 of the Rules of the National Assembly provide that Parliament Committees must oversee the exercise of executive organs of state falling within its portfolio. The same rule also permits Parliament Committees to oversee and investigate the actions and the performance of functions of executive organs falling under its mandate.
The previous week the Portfolio Committee on Police met with DPCI. The Committee was briefed on a number of issues. It emerged during the meeting that DPCI was facing various challenges inclusive of, but not limited to, the processing and prosecution of alleged offences relating the state capture. Dr Motshekga and Mr Beukman held a series of consultations and resolved that a joint meeting between the Portfolio Committees on Justice and the Police should be held to get to the bottom of what challenges the NPA and DPCI are facing in the prosecution of state capture related offences.
DPCI is governed primarily by the South African Police Service Act. The SAPS Act provides that DPCI should adopt a multi-disciplinary approach to investigations. The Act also states that, where appropriate, DPCI should cooperate with other organs of state including, but not limited to, the NPA. The National Prosecuting Authority Act provides that special investigating units, in consultation with DPCI, should conduct joint investigative and prosecuting procedures when investigating and prosecuting complex or serious national priority offences.
Chapter 12 of the National Development Plan (NDP) states that the criminal justice system must have a single set of objectives, priorities and targets. This relates to the Seven Point Plan which provides that inspiring public confidence in the criminal justice system is necessary to maintain public safety. Public confidence is eroded in the criminal justice system and the law generally, when there is a public perception that criminals escape the consequences of the law, arrests do not lead to convictions or when prisoners escape easily from court rooms or correctional facilities. The most effective deterrent against crime is an efficient and effective criminal justice system. The NDP reiterates that the criminal justice system can only be effective if there is efficient and continuous cooperation between the various Departments in the security cluster.
Chairperson Motshekga said that politicians may come and go, but the professional heads of government institutions stay in their positions even though there may be a change in who occupies political power. This is the reason the heads of those institutions are governed by the law, which provides that such people must act without fear, favour or prejudice. They do not serve politicians. Rather they serve and act in the public interest of the people.
That morning Mr Motshekga had received a message from a former NPA prosecutor who is now a practising advocate of the Johannesburg Society of Advocates. In the opinion of that advocate, where there is a prima facie case, the police must arrest those against whom a prima facie case has been established. Once a prima facie case is established then arrests must follow and a decision to prosecute must be taken. The NPA does not require permission from any person or institution before instituting a prosecution. This underpins the independence of law enforcement officials in performing their work. It was therefore very concerning for the Justice Committee to hear that there are stumbling blocks between the NPA and DPCI, which appears to have arisen from a breakdown in inter-departmental relations. The purpose of the meeting is to determine whether such stumbling blocks in fact exist and if they do, how those can be removed so both institutions can perform their functions without fear, favour or prejudice.
Adv Abrahams was asked to introduce his NPA delegation: Adv Sibongile Mzinyathi, Head: National Prosecuting Services; Adv Malini Govender, Head: Specialised Commercial Crime Unit (SCCU), NPA; Adv Luvuyo Mfaku, Spokesperson.
Lt Gen Matakata was asked to introduce her DPCI delegation: Brigadier Hangwani Mulaudzi, Spokesperson; M Bokaba, Head: Specialised Priority Crime Investigation; Zama Basi, Acting Head: Corrupt Activity Investigation; Colonel Steyn, Parliamentary Liaison Officer.
Chairperson Beukman also welcomed Adv Vusi Pikoli, former National Director of the NPA, who was in attendance in his personal capacity. He requested the presentation deal directly with the subject matter of the meeting and avoid long explanations about long term projections and the mandate of each entity. He requested Adv Abrahams to deal specifically with progress in the state capture investigation. The Portfolio Committee the previous week had received a briefing from Lt Gen Matakata on behalf of DPCI. According to that briefing DPCI was ready to proceed with arrests in December 2017. The matter therefore had been delayed for four months. What are the stumbling blocks to proceeding with those arrests and prosecutions? Why are DPCI decisions to proceed with arrests and investigations sometimes delayed for up to a year to five years in some instances?
NPA National Director of Public Prosecutions briefing
Adv Shaun Abrahams thanked the two Committees for inviting the NPA to brief them on progress in state capture investigations and prosecutions. The meeting was necessitated by a briefing which Lt Gen Matakata had given to the Portfolio Committee on Police the previous week. Various arrests had taken place the previous week including the arrest of individuals involved in the Estina dairy farm matter in the Free State.
Lt Gen Matakata had informed the Portfolio Committee on Police that DPCI had concluded its investigations into the Estina matter at the end of 2017. When the investigation was concluded the docket was submitted to the NPA. DPCI then had to wait for a decision as to whether any persons should be prosecuted or not. According to Lt Gen Matakata, the NPA only gave the go ahead to arrest those individuals in February 2018 which subsequently resulted in arrests. According to Lt Gen Matakata, there was a lack of information on why it had taken the NPA so long to provide an indication as to whether to proceed with arrests and that she taken that matter up with both the Commissioner of Police and Adv Abrahams. According to Lt Gen Matakata, the NPA had hindered the work of DPCI by not acting expeditiously and in some cases dockets had been with the NPA for up to a year before any decision was taken on whether to proceed.
Before proceeding to deal with the information communicated by Lt Gen Matakata to the Portfolio Committee on Police, Adv Abrahams stated it was first necessary to provide a background to the progress made thus far in the state capture investigations. During an appearance before the Standing Committee on Public Accounts (SCOPA) in May 2017 and during a briefing before the Justice Committee in October 2017, both Committees were briefed on the following details. That the State of Capture report – by former Public Protector Adv Thuli Madonsela – was referred to his office and to the head of DPCI by the new Public Protector Adv Busisiwe Mkhwebane. A decision was taken that further investigation by both the NPA and DPCI would have to be undertaken as the information contained in the State of Capture report was – understandably at the time –insufficient to enable either organisation to make a pronouncement on whether to proceed with arrests or prosecutions. He subsequently consulted with the Head of National Prosecuting Services and the Head of the SCCU. A special team of prosecutors was established by Adv Abrahams to provide guidance to DPCI, under the auspices of a prosecutor guided investigation. A team of asset forfeiture specialists was also added to that team under the auspices of the Asset Forfeiture Unit (AFU) headed by Adv Knorx Molelle.
The prosecutor lead investigation was subsequently divided into seven different legs. The first leg was the Vytjie Mentor investigation. The second leg was the Jonas investigation. The third leg related to a complaint lodged against Government Communications and Information System and the New Age investigations. The fourth leg related to Eskom and Tegeta. The fifth leg related to Transet and Trillian. The sixth leg related to the Denel VR Lazer investigation. The seventh leg related to Public Protector related offences against both ANC Youth League President Collen Maine and the former President Jacob Zuma.
Numerous engagements occurred between DPCI and NPA investigators and are still ongoing. He advised that the Estina matter should then become the eighth leg of the state capture investigation. The NPA had assured all the respective Parliament Committees that work is continuing on all those matters and progress is being made. The Portfolio Committee on Justice and Correctional Services were informed that the NPA was not in a position to determine when any suspects would be charged, as that was decision which investigators from other organs of state are empowered to make. Additionally, no arrests could occur until the investigations were properly concluded. The Justice Committee was also informed that the NPA could not confirm or deny whether asset forfeiture applications would be made or – if they were going to be made at all – whether such applications would be made. Public disclosure of that information would be undesirable and create challenges for further investigations. As is common with ex parte applications such public disclosure would have the possibility of creating unnecessary and undesirable delays.
On 26 August 2017, Adv Abrahams was formally briefed by Adv Govender from the SCCU and Adv Knox from the AFU on the strategy to be adopted to deal with potential flight risks as identified. At the same meeting briefings were held on the AFU processes and the prosecution strategy. In the space of approximately seven months the joint DPCI and NPA prosecuting team has done the following inclusive of: engaged in no less than 24 formal meetings, received 19 dockets relating to various criminal and other allegations, received seven forensic and investigative reports from National Treasury and civil society, issued 373 section 205 Criminal Procedure Act subpoenas, drafted requests for mutual assistance to eight different countries and directly engaged with prosecuting authorities in seven of those eight different countries.
The work of the team must be viewed in context. Prosecutions of this nature are extremely complex. Like the Arms Deal prosecutions it may take several years to fully investigate and prosecute these matters on what is already a heavily burdened court roll. The AFU conducted preliminary assessments of the various reported matters, identified 17 cases with asset forfeiture potential to the collective value of R50 billion. Those matters would be dealt with under Chapter 5 and 6 of the Prevention of Organised Crime Act (POCA). To date the AFU has obtained two preservation orders with a collective value of R1.6 billion for the McKinsey and Trillian agreement and R228 million for the Estina matter. There are of course a number of other matters which are in the process of been finalised. Those matters should be finalised within the coming weeks but a number of them should have been finalised and brought already.
Adv Abrahams then dealt specifically with the Estina matter.
The Estina matter was prioritised and first referred to the NPA on 18 August 2017. In the space of the past seven months the NPA and AFU investigators have been able to ensure that the investigation by DPCI was fast tracked so that preservation orders could be instituted, and search and seizure operations conducted and arrests could be affected. The search and seizure operations are at an advanced stage and arrests been effected against three government officials, the director of Estina and the director of three different companies that received the proceeds of crime. The directors and the various implicated officials were charged with offences ranging from theft, money laundering and contraventions of the Companies Act. A few outstanding matters still remain, and it is for this reason that the court matter has ultimately been postponed to 17 August 2018 for further investigation.
Adv Abrahams stated he specifically wanted to respond to the comments made by Lt Gen Matakata of DPCI. After Lt Gen Matakata briefed the Portfolio Committee on Police the previous week, he requested that Adv Govender give him a full briefing on Lt Gen Matakata’s remarks and the progress in the investigations insofar as it relates to the NPA. On 05 February 2018 he was provided with a report which provided a factual account of the NPA’s engagement with DPCI on this matter which was based on documents inclusive of: notes kept by the head of SCCU, briefing notes and other dockets kept by the investigating and briefing teams.
He did not intend to cover all of the engagements relating to the state capture and Estina investigations. He would only cover those aspects which are most relevant to the current meeting. Adv Abrahams and Lt Gen Matakata had always enjoyed a professional and collegial working relationship ever since she was appointed as Acting Head of DPCI. They communicate regularly on high profile matters which impact on the legal and constitutional responsibilities of both entities. That relationship is still collegial and will continue to be so going forward.
However, Adv Abrahams stated the remarks of Lt Gen Matakata before the Portfolio Committee on Police were regrettable. It is his view that she was incorrectly informed and advised. He continues to believe that the issues raised by her could have been resolved outside of the public eye. This has created a public perception that there is a degree of animosity between DPCI and the NPA especially as it relates to the NPA and DPCI teams investigating state capture allegations. The perception is now that he and Lt Gen Matakata are at loggerheads. This is entirely incorrect.
Adv Abrahams fully disputes the remarks made by Lt Gen Matakata before the Portfolio Committee on Police, especially such remarks related directly to the NPA. On the evening of 22 May 2017, he and Lt Gen Matakata – whilst participating in another engagement – took the opportunity to discuss the state of capture investigations. At this time, the investigations had already been consolidated under a single investigating team. He had already constituted a prosecuting team. All of the state of capture investigations were subsequently submitted to the prosecuting team to provide appropriate guidance under the prosecutor guided methodology. All of this was agreed upon between himself and Lt Gen Matakata on behalf of DPCI. At the time some of the matters were been investigated by DPCI serious corrupt offences division and others by the economic offences task team.
In July 2017 not all of the matters had been forwarded to Adv Mzinyathi on behalf of the NPA. At that time Adv Mzinyathi wrote to Lt Gen Matakata on 07 July 2017 to request her assistance in forwarding all of those state of capture investigations to the NPA. On 03 August 2017 Adv Govender called a general meeting with General Molopi of DPCI to enquire about the progress in the Estina matter. This was followed up by a meeting on 03 August 2017. On 08 August 2017 a meeting was held with two members of DPCI investigating team, the head of the SCCU and the head of operations of the AFU. Assistance was rendered by the NPA to sign subpoenas under section 205 of the Criminal Procedure Act. On 12 August 2017 the same members provided the docket to the NPA for the Estina matter and two other related matters. At this stage the A clip of the docket – which ordinarily contains witness statements and police statements – only went up to A5. On 21 August 2017 the NPA obtained National Treasury reports for the Estina matter and other matter. Both reports were provided to the investigating team and prosecuting team. On 25 August 2017 DPCI met with the AFU and SCCU teams. At this stage Adv Govender alerted the joint teams to the necessity of ensuring their activities canvassed the flight risks that certain suspects presented. Adv Govender also requested both teams to fast track the investigations and to ensure a draft charge sheet was available by November 2017. The team however expressed grave reservations on whether such a target would be achievable given the complexity and grave nature of the offences subject to investigation.
On Saturday 26 August 2017 he was briefed by the SCCU and the AFU teams on their strategy to preserve assets and ensure that matters were enrolled expeditiously inclusive of the management of potential flight risks. He was greatly concerned by the progress in those matters and other investigations. He deemed it prudent to then write to Lt Gen Matakata on 01 September 2017 were he conveyed the following inclusive of: his concern about the lack of progress in various serious financial, fraud and corruption matters some of which had previously been discussed with her. He implored Lt Gen Matakata to assign further resources and investigators to those matters. He advised that he was of the view that she was in agreement that serious consideration be given to invoking the provisions of section 17D(3) of the SAPS Act in some of those matters, by requesting him to appoint a DPP or Special Director of Public Prosecutions to fast track some of those investigations. Additionally, if such a request is made he would provide a favourable response. He also informed her of the provisions of Section 17J(1)(a) of the SAPS Act which provides for the establishment of an operational committee to be comprised of people inclusive of: the head of DPCI as Chairperson, the head of crime intelligence in the SAPS, the NDPP, the Directors General of Finance, Justice and Constitutional Development and any other persons which may be required to serve in that committee. Section 17J(2)(a) of the SAPS Act obligates the operational committee to monitor, facilitate and support DPCI inclusive of seconding personal to DPCI and to address problems which may arise in the rendering of such support and assistance to DPCI. That since DPCI is dedicated to investigating national priority offences, serious commercial crime and corruption, the effective discharge of their mandate would require the cooperation of the various organs of state in the security cluster amongst others. That envisaged operational committee is yet to be established but he was of the opinion that establishing such a committee would do much to combat state capture and the serious allegations of fraud, corruption and other economic crime which has a detrimental effect on the economy and the safety and security of everyday citizens.
He raised with Lt Gen Matakata that his concerns were particularly highlighted at that time, due to the serious challenges faced in combating the funding of terrorism, illicit financial flows and the combating of corruption and other related offences. He advised that an anti money laundering advisory council be established which was a statutory requirement in terms of the Financial Intelligence Centre Act which came into effect on 01 February 2002. The same council would be obligated to advise the Minister of Finance on best practices in identifying the processes of identifying and combating money laundering. Despite the significant importance of establishing this council, Ministers of Finance at the time did deem it necessary to establish this council pursuant to the statutory requirements of the Financial Intelligence Centre Act. He further advised that the failure to establish that council has had a negative consequence on the ability of law enforcement to combat illicit financial flows, money laundering and other related economic crimes. He cautioned that a similar fate should not follow the provisions of the SAPS Act which provide the establishment of a counter money laundering advisory council.
The AFU and the SCCU were – from the end of September 2017 – bolstered by the appointment of several additional investigators from DPCI and the Financial Asset and Forfeiture Investigation (FAFI) unit from DPCI. Colonel Heap was assigned as the lead investigator on all of those matters. The joint DPCI and NPA teams met again on the following dates: 13, 27 and 29 September 2017 and on 31 October 2017 and 08 and 21 November 2017 and again on 07 December 2017 before breaking for the festive season. The next meeting was on 18 January 2018. In this regard it must be noted that the issues related to bail and investigation of suspects is recorded in the case investigation plans of September 2017. On 25 October 2017 the prosecuting team was provided with a copy of the A clip of the docket. At this stage the evidence and statements in the docket had progressed to A35. The prosecuting team however did note that the scanned copy of the docket provided was incomplete. A full copy was requested for all parties to fully canvass the docket. The full docket was only provided to the prosecuting team on 04 November 2017. On 08 November 2017 the SCCU head was provided with a memorandum and a draft affidavit by Brigadier Basi of DPCI and Colonel Heap for submission to Lt Gen Matakata. Brigadier Basis intimated that if the NPA agreed, then warrants of arrest would be issued for the identified suspects. Adv Govender then advised Brigadier Basi on how the affidavit should be structured as the draft affidavit omitted to canvass the charges of money laundering and the linkages required to establish a prima facie case as well as the flight risk information. Adv Govender also recommended that Adv Abrahams and Lt Gen Matakata be briefed on suspects of foreign descent who could be regarded as potential flight risks.
On 14 November 2017 Brigadier Basi informed Adv Govender, that the investigation into the Estina matter was finalised and the docket submitted to the NPA for decision. Both Brigadier Basi and Adv Govender agreed at the time that the matter was not fully investigated. The prosecuting team then advised that it was not possible for the Estina docket to be submitted for a final decision as there were still substantial investigative matters outstanding. A case investigation plan – dated 08 November 2017 – which detailed the outstanding matters was provided to Adv Govender. Adv Govender was also advised that fast tracking the investigations was material to proving the money laundering charges against the suspects of foreign descent against whom a reasonable apprehension existed as being potential flight risks.
In December 2017 the prosecuting team received a draft financial report from DPCI. The prosecuting team raised concerns that the report could not be verified against the bank statements and therefore that report could not be relied on, or presented in a court of law, to establish a prima facie case. On 06 December 2017 Adv Govender meet with Brigadier Bokaba and Colonel Heap where she identified several deficiencies which the prosecutors observed would present those documents from been used in court. Brigadier Bokaba undertook to address the shortcomings and said these would be addressed in the new year, as the designated DPCI member had already taken his annual leave for the festive season.
At a joint meeting between DPCI and the NPA on 07 December 2017, both parties shared the view that a prima facie case could not be made out against the parties identified for the purposes of the money laundering and theft charges, which was made all the more so without the case flow analysis. Accordingly, no warrants of arrest or affidavits were prepared by DCPI for submission to the NPA for consideration. This was accepted by all the parties present as it was both rational and reasonable in the circumstances. Adv Govender again raised potential flight risks and DPCI advised that monitoring of the suspects movements were currently in place. A joint decision was then made that the arrest would be made in early 2018 as the majority of the members of both teams were on annual leave during that period.
The prosecuting team was satisfied DPCI had put adequate measures in place to monitor any potential flight risks which the suspects presented. An updated case plan – which once again highlighted that DPCI investigators should work on the bail information – was provided to DPCI investigators. This was required for the arrest of suspects and for their first appearances. The witness statements and evidence in the police dockets now went up to A82. As of 06 December 2018, he was personally briefed on the matter and raised the issue of arresting the suspects. He was advised that the prosecutors were not in a position to apply for warrants of arrest against the suspects of foreign descent.
On 11 December 2017 the Minister of Justice and Correctional Services was briefed on the state of capture investigations. On 15 January 2018 Adv Govender requested Colonel Heap to provide an update on the affidavits and warrants of arrest. On 18 January 2018 – during a case status meeting – the prosecutors were presented with an affidavit and applications for warrants of arrest for the first time. The prosecuting team again expressed their discomfort in certifying that the evidence presented established a prima facie case against the suspects – sufficient to establish money laundering and theft charges. Brigadier Bokaba assigned a further senior member to assist in fast tracking the financial analysis within two weeks, as the prosecutors did not want this to impact on the impending arrests. The prosecutors further advised that the arrest warrant applications were deficient as they did not adequately deal with the suspects being potential flight risks. The prosecutors requested the investigators to accordingly deal with that.
On 23 January 2018 the prosecutors were provided with an affidavit that was to be used in the search and seizure operations. On the evening of 24 January 2018, Brigadier Basi, Adv Govender and Colonel Heap briefed Lt Gen Matakata, Adv Abrahams and Adv Mzinyathi on the search and seizure operations. At no stage during this meeting did Lt Gen Matakata raise any of the concerns which she later raised before the Portfolio Committee on Police the previous week. The NPA was advised the arrests would not occur simultaneously with the search and seizure operations. Arrests would only follow once the evidence obtained in the search and seizure operations was evaluated. They were further advised that the reason the arrests would not occur simultaneously was because of the outstanding bail information and the financial analysis which was also outstanding. Those outstanding matters – and additional statements – would be completed within the time frame provided.
This meeting would have been ideal for Lt Gen Matakata to raise any concerns, which she subsequently decided to only raise much later with the Portfolio Committee on Police the preceding week. Lt Gen Matakata’s concerns were not raised with Adv Abrahams at that meeting. On 25 January 2018 the search warrants were authorised by a magistrate in Bloemfontein and executed the following day. On 27 January 2018 the investigators obtained statements of beneficaries, which were statements that had been outstanding as far back as September 2017.
On 31 January 2018 one of the prosecutors stated the nature of the applications that would be necessary to succeed in any application for warrants of arrest. That information was provided to DPCI on the same day. On 06 February 2018 the prosecutors met with the investigators and the financial analysts. The prosecutors – in concurrence with the financial analysts – expressed reservations on signing off on the warrants of arrest without the financial investigations having been finalised. On 07 February 2018, Adv Govender obtained those dockets and applied her mind to its contents. It was only after that the members of DPCI were advised they could secure warrants of arrest at any stage, were a person is found to pose a substantial flight risk. There was however still a substantial amount information which had to be included in the affidavit. Adv Govender advised Brigadier Basi on what information was outstanding. She advised that that information should be submitted to her by the following Friday so that she could attend to the arrests and first appearances of any accused by Monday 12 February 2018. The affidavits were forwarded to Adv Govender on 11 February 2018. Adv Govender then provided input via email on 12 February 2018 about the impact on the case and the potential for having to apply for extradition. A joint decision was therefore taken to focus on those suspects whom the police had traced as being within the border of the country. At this stage Brigadier Basi telephonically advised that certain suspects had already left the country on around 12 August 2017. This was around a week before the docket had ever been submitted to the NPA.
On 13 February 2018, members of the prosecuting team met with the investigators and signed off on the warrants of arrest. Adv Govender advised that Adv Abrahams and Lt Gen Matakata be briefed on the warrants of arrest and their execution. However, Adv Govender was advised that Lt Gen Matakata had already been briefed and Lt Gen Matakata in turn then briefed Adv Abrahams. The arrests were executed the next day on 14 February 2018 against the persons whom the investigating officers were advised were still within the country. Brigadier Basi was advised that Mr Ajay Gupta was still in the country when the warrant for this arrest was authorised. Unfortunately, Mr Ajay Gupta could not be arrested as he purportedly fled as others were arrested at the Gupta residence in Saxonwold.
All those arrested subsequently appeared in court and were granted bail. The court matter has now been postponed to 17 August 2018 for the investigation to be finalised.
Mr Abrahams then dealt with specific concerns which had appeared in the public domain and which Members had put to him.
He stated emphatically that a fully investigated docket into the Estina matter was not submitted to the NPA in November 2017. In his view, the facts which he had presented had made that much patently clear.
It is correct that DPCI was only given the go ahead to proceed with the warrants of arrest against the suspects in February 2018. The investigation – at that stage – was only sufficient meritorious to establish a prima facie which could result in a successful warrant of arrest. DPCI had expressed its concerns that matters were dragging. Lt Gen Matakata however had never raised such concerns personally with Adv Abrahams at any point. He emphatically rejected any notion that the prosecutors had dragged their feet in this matter. Complex matters of this nature can take a very long time to investigate let alone prosecute, which can – in some cases – even take a number of years. The docket was only presented to the NPA in August 2017. In less than seven months the accused were brought before court.
Lt Gen Matakata failed to take up any concerns with him personally and he personally disputes any contrary statements to that effect. He was personally very surprised by her comments before the Portfolio Committee on Police the previous week. The NPA fully – and in the strongest terms – disputes any assertion that the NPA hindered the work of DPCI in not taking matters to court expeditiously. All decisions were taken jointly by DPCI and NPA. If the matter was not ripe for enrolment, then the fault cannot be laid at the door of the NPA. If the NPA is not satisfied that the investigations and evidence gathered have failed to establish a prima facie case, then the NPA cannot reasonably be expected to enrol such a matter. Notwithstanding that fact, nothing precludes DPCI from arresting any suspect, in any matter, with or without a warrant. DPCI is fully aware of that fact. However, if the prosecution is not satisfied that a prima facie case has been established then the ultimate result is that the matter will be removed from the court roll and any suspect will then be released from custody.
If there are instances where dockets have sat at the NPA for up to a year - without the NPA having made a decision - Adv Abrahams is personally unaware of any such dockets which have not been brought to his attention. He invites Lt Gen Matakata to provide himself and Adv Mzinyathi with a list of those matters, to investigate those delays and then to take appropriate action if that is indeed the case.
Adv Abrahams gave a few concluding remarks.
It is regrettable that this matter has found its way into the public domain prior to been addressed by himself and Lt Gen Matakata. The NPA regards DPCI as a core partner in their joint fight against maladministration, corruption, economic offences and other related serious criminal matters. The NPA looks forward to continue working with DPCI and continuing to build on an already good working relationship and further giving effect to the provisions of section 41(1)(h) of the Constitution. He thanked the joint committee meeting for providing the NPA with an opportunity to present their side of the story on this matter.
Chairperson Beukman thanked Adv Abrahams for his presentation.
Chairperson Motshekga said he believes in levelling the playing field and allowing all sides to state their story. He asked if Adv Abrahams had shared his presentation with Lt Gen Matakata before the meeting commenced. He noted she had taken strenuous notes during his presentation and whether Lt Gen Matakata would be able to do justice to his presentation and responses. In light of Adv Abrahams assurances that DPCI and NPA share a close working relationship he should have shared his presentation with her prior to the meeting. Regardless, this is the situation in which the Committee now finds itself and they will have to proceed as best as they can.
Directorate for Priority Crime Investigation Acting Head response
Lt General Yoliswa Matakata firstly clarified her comments the previous week before the Portfolio Committee on Police, to the effect that the work of DPCI was hindered by the conduct of the NPA. She clarified that her comments were not to the effect that the work of DPCI was hindered by the NPA. Rather, she meant to give context where there were certain time delays after dockets were provided to the NPA by DPCI, up until the arrest of the suspects. Her comments should not be construed as meaning that the NPA had generally hindered the work of DPCI.
There is a good working relationship between DPCI and the NPA. Prosecutors that have been allocated have done work with DPCI as was stated by Adv Abrahams in his presentation. The work has been ongoing, both before and after, the date in August 2017 when the docket was shared with the prosecutors from the NPA for the first time. That work is still continuing as was indicated in Adv Abrahams presentation on the various legs of the state capture investigations.
She stressed that any perception that she has – or has attempted to – throw Adv Abrahams under the bus is completely incorrect. This is the general public perception. There is also a public perception that DPCI and NPA are headed for a public standoff. Both of those perceptions are incorrect. Both DPCI and the NPA are mandated to execute their mandates in a cooperative and multi-disciplinary approach with one another. DPCI is mandated to work with prosecutors as the latter perform the vital role of actually prosecuting cases in court. The docket was submitted in August 2017 and decisions were taken in the 2018 financial year. That in itself does not mean there is breakdown in their working relationship which continues to remain good.
The docket was submitted to the NPA in August 2017. A decision was made that instead of focusing on all the charges, maybe it would be necessary to prefer certain charges to the exclusion of others where sufficient evidence already exists to establish a prima facie case. At the core of this concern was the possibility that certain suspects could flee the country and then be placed out of the reach of South African law enforcement. Adv Abrahams did note this in his presentation. The last meeting between DPCI and NPA in January, did not result in any indication to DPCI that they would have to wait until the financial analysis was completed before it would be prudent to proceed with arrests for money laundering or other charges. They had however agreed that certain arrests would occur and that a search and seizure operation would take place at the Vrede dairy farm.
It is therefore unfortunate that some of these matters have been articulated as a public standoff between DPCI and NPA. They both enjoy a good working relationship and have work to do. She does agree with the suggestion of Adv Abrahams that a multi-disciplinary working committee should be established. The presentation was helpful in that respect as it did provide clarity on a number of issues which were previously uncertain. Adv Abrahams has given context to why there may have been a perception that the NPA were dragging their feet on this matter.
Chairperson Beukman requested that Lt Gen Matakata provided full written responses to the input of Adv Abrahams so that both Committees could study her responses further.
Ms M Molebatsi (ANC) said Lt Gen Matakata may not have expressly stated that the NPA is hindering the work of DPCI. The fact of the matter is that justice delayed is justice denied. She addressed a point to Adv Abrahams. In President Ramaphosa’s State of the Nation Address (SONA) he promised the citizens of South Africa that he was going to deal with corruption. Any action of delaying or relying on technical procedural points could be interpreted as sabotaging that commitment. What is Adv Abrahams take on that perspective?
Mr J Maake (ANC) said the Committee had received a blow by blow account from the NPA. However, the responses from DPCI were not nearly as meticulous. The Portfolio Committee on Police performs oversight of DPCI and measures their performance. Their performance is measured by the cases they take to court. If they do not take cases to court, then they are not doing their job. This issue must be seen in this context. Perhaps DPCI and the NPA have different measuring instruments in terms of performance. However, in the view of the Police Portfolio Committee, if no cases are taken to court then DPCI is not doing their job. In future there should be greater synchronisation between the NPA on that score to ensure cases are taken to court and prosecuted to enable the Committee to determine if DPCI is effectively executing its mandate.
Ms L Mabija (ANC) asked Lt Gen Matakata whether the statement of Adv Abrahams was true, in that she did not raise any concerns about her view that the NPA was delaying the finalisation of matters. Who in the NPA had the final authority to make the final decision on the matter of issuing the warrants?
Ms M Mothapo (ANC) welcomed former NDPP Adv Pikoli who was attending in his personal capacity. The Portfolio Committee on Justice and Correctional Services were not present when Lt Gen Matakata raised issues about the delay of the NPA before the Portfolio Committee on Police the previous week. However, the NPA and DPCI appeared to address many of those concerns in their respective presentations. It is good that they appear to have a strong working relationship as the country will not be able to take on the scourge of crime if those two vital institutions do not work together. It is also good that they have adopted a multi-disciplinary approach to the investigation and prosecution of high priority crime. However, it is quite concerning that these matters have not been finalised as this issue dates back to at least 30 July 2017. The Citizen and the Sunday Times reported at that date that a state of capture task team was formed. The NPA also assured the public that they would be taking the state of capture report very seriously. One would have thought that more action would have been taken at that time already. It is also disturbing that we now found ourselves where some suspects have fled the country. Is the NPA and DPCI in a position to implement international instruments to extradite those suspects so that they can face the might of the law? It is also taking a long time to finalise certain matters, especially the eighth leg in the Estina matter. What is happening with the first to seventh legs? There is a fear that information may be being leaked. How safe are the risk management process of the two institutions?
Mr L Ramatlakane (ANC) said that Adv Abrahams had appointed a specialised team to be part of the investigation. However, during his presentation he had contradicted himself to the extent that he questioned the availability of the very team he had deployed. He had nowhere indicated during his presentation that the deployed team would be able to solve case questions, which would not be the case if they were in fact integrated. Adv Abrahams had continually mentioned Adv Govender as the person responsible for quality control yet she also headed that team. Yet later in the presentation he stated she was only the quality controller. It then appears that either the teams are not sufficiently integrated or that the integrated approach does not work. The different teams do not appear to be sufficiently coordinated. This is very worrying. How can it be that when a docket is handed to the NPA in December 2017, they did not raise a financial analysis at that point? It is difficult to understand how that can be the case if those individuals were sufficiently integrated into the different teams. How can it be that when cases have already been confirmed by the NPA investigating team, that the case analysis then constitutes a stumbling block to instituting any action?
Mr Ramatlakane said Adv Abrahams continually referred to the advice of Adv Govender about possible flight risks. Nothing substantial appears to have been done about that besides some monitoring by DPCI. How can it be that that same advocate raised those concerns, yet there appears to have been no action in utilising legal procedures to prevent those suspects from fleeing? For example, why were the passports of the suspects not confiscated if they constituted flight risks? The NPA was aware of those matters since at least 2017. The NPA has sufficient legal powers to mitigate any flight risk but appears to have taken no serious action. Suspects left the country during the festive season, but it appears – in his view – that those suspects were actually assisted to leave the country. On the record Adv Abrahams formally raised that concern, yet those suspects were still able to escape the country.
On another issue, Mr Ramatlakane asked how the NPA deals with the public perception that the NPA engages in selective prosecutions. There is no dispute that DPCI submitted the docket to the NPA in November 2017. The only issue is that the NPA expressed reservations about certain additional materials such as the financial analysis. Nothing appears to suggest that the only reason they could not move forward was because the financial analysis was outstanding. However, there appears to be nothing to suggest that there were similar stumbling blocks in other matters and if that is the case, then why did the NPA not proceed in those matters? When was the preservation order for asset forfeiture issued and replied for? Adv Abrahams had referred to a SCOPA briefing. His assumption is that all matters discussed in Parliament mean the speaker is under oath. Lying to Parliament under oath is an offence. The SCOPA report is worrying as it suggests that 100 cases have been prioritised yet none of those cases appear in the eight legs referred to Adv Abrahams.
Mr W Horn (DA) firstly aligned himself with the comments of Mr Ramatlakane. Mr Horn had the impression that the approach implemented was not integrated, rather it was highly fragmented. He said to Adv Abrahams that – in his perception – the NPA only appeared to begin to take any meaningful action in 2018. Prior to 2018, there appeared to be a great number of matters which were formally placed on record yet later the NPA appears to argue that they have not been derelict of their duty. On prosecutor guided investigations, there was no real guidance from the NPA about the manner in which to expedite those matters to proceed with arrests and prosecutions as a matter of urgency. Adv Abrahams continually justified that stance with reference to issues inclusive of bail, DPCI not establishing a prima facie case and so on. The NPA also appears to have indicated they were satisfied that adequate measures were put in place for the flight risk posed by certain suspects. Then, the Committee is somewhat absurdly informed that all of those processes were put on ice during the December 2017 period. With the greatest of respect, if the NPA and DPCI were actually serious about tackling state capture, then they should not have taken a holiday during December. Both DPCI and NPA must give an explanation about that. It is now common knowledge that certain suspects did in fact flee the country. How could a decision then be taken not to proceed in December? Adv Abrahams said that adequate measures were in place to prevent flight risks. Those measures however appear to have been wholly inadequate to prevent suspects from fleeing the country. Adv Abrahams spoke about the monitoring of flight risk suspects. Yet, on his own version, one of the prime suspects fled the country while arrests at his home were undertaken for other individuals. When did the monitoring stop if he was able to flee when the actual arrests were executed?
Mr Horn said the case has now been postponed under 17 August 2018, to allow the NPA and DPCI to attend to outstanding issues. The NPA and DPCI should inform the Committee of what those outstanding issues are and if they will lead to further arrests. The one issue that was not properly addressed was the Estina matter. The Portfolio Committee on Justice had met with the Public Protector the previous day, and it is clear that all the instances of money laundering, theft and corruption arising from the Estina matter – intended to benefit the poorest citizens in the country – did not happen in a vacuum. It happened as part and parcel of active political support for that project. There must be a full and proper investigation as to how this whole process was facilitated by politicians, which appears not to have occurred to either DPCI or NPA. The special director, in view of section 24(3) of the NPA Act, must act specifically in consultation at all times with the relevant DPP. Did this happen and if it did, to what extent? It would seem that the effectiveness of the entire investigation was hampered by a fractured approach without properly involving the relevant DPP.
Adv G Breytenbach (DA) aligned herself with the comments of both Mr Horn and Mr Ramatlakane. She asked Adv Govender what drove the decision not to issue arrest warrants. In an eNCA interview Adv Govender stated arrest warrants are issued only in special cases where suspects are considered a flight risk or unlikely to appear in court. She also confirmed no applications were made for arrest warrants early in the year, instead summons were issued for them to appear in court. It is obvious that the suspects referred to are the Gupta family, their associates, former President Jacob Zuma and his son Duduzane Zuma. The Guptas – and at least Duduzane Zuma – are widely known to have considerable assets abroad, have more than one passport and even homes abroad. If these suspects are not considered flight risks, then in her experience of 26 years a prosecutor, she has no idea who would constitute a flight risk. These are exactly the type of suspects for whom warrants of arrests and serious restrictions on their movements should be implemented inclusive of opposing bail. Even if bail was granted then serious restrictions should be placed on their movements and bail should be set at a substantial amount. It is completely absurd that none of this occurred. It is also absolutely impossible that these suspects could not have been considered flight risks. Yet, absolutely nothing was done to prevent them travelling or their ability to leave the country and now it is clear that the majority of them have fled abroad as a result of that failure.
On 26 August 2017 state capture was clearly in the public domain. National Treasury, the Public Protector and the media were all investigating those matters. Yet, the police and the NPA failed to do anything whatsoever. There was already a financial analysis which emerged from the Gupta leaks which entered the public domain in June 2017. There are incomparably detailed reports and forensic analysis already available. All that the NPA and police had to do was verify that information which is not a difficult task. Adv Abrahams continually reiterated what a difficult task that is. She can assure the Committee as a former prosecutor that it is not a difficult task whatsoever. Surprisingly, for as long as Jacob Zuma remained the President of the country, both the NPA and the police failed to take any action against any of those people. It is obvious that the entire process was politically manipulated. It was only once Zuma lost his grip on power that the NPA and the police decided to act and even then, no one of any significance has been arrested. All the primary suspects were allowed to leave the country due to some absurd belief that none of them were flight risks. It is painfully obvious that there has been political interference from the outset and that the NPA and police – despite their clear legal and constitutional obligations to act independently – have both patently failed to act in accordance with those duties.
Adv Breytenbach stated to Lt Gen Matakata that in her entire experience as a prosecutor, she has never encountered an instance where a member of the police was so unashamedly thrown under the bus by a prosecutor, as Adv Abrahams had done to her today which is disgraceful conduct on his part. Prosecutors and police are supposed to work together and protect each other, but it is apparent that Adv Abrahams had done none of that today. She asked Adv Abrahams about his deliberately blocking any asset forfeiture action on Trillian – which she emphasised was from a very reliable source – only begrudgingly allowed asset forfeiture proceedings against McKinsey and stating in no uncertain terms that if any asset forfeiture proceedings would be instituted against Trillian, those proceedings would only take place after the ANC elective conference in 2017. If that is so, he must give an answer why he thought it was acceptable to proceed in that manner. Adv Abrahams listed various examples of what he and NPA have done on the state capture investigations. He spoke about the issuing of 305 section 205 subpoenas. That is not impressive. A section 205 subpoena is a run of the mill administrative task and the majority of that work is done by the police; all the prosecutor does is sign off the subpoena. The same goes for much of the documents which he listed. Why was bail information not verified? Suspects were patently flight risks yet absolutely nothing was done to prevent them from leaving the country. It is clear that the entire process was bungled and handled in an incompetent and unacceptable manner.
Ms D Kohler Barnard (DA) agreed that this was a completely bungled investigation. Nothing she has heard today has done anything to convince her that an impenetrable net of political protection was not thrown over the entire Gupta family and their associates. From the time the investigation was completed and handled over to the NPA – for reasons she has yet to understand – the NPA then authorised a raid of what had then become the Gupta’s empty nest at their Saxonwold home. Lt Gen Matakata should have prepared a detailed run down of her meetings with the NPA and it is hoped that such a run down will be forthcoming in the future. The Hawks informed Parliament that they had awaited the go ahead from the NPA before proceeding with arrests. However as noted by Chairperson Motshekga, they should not have waited for permission from the NPA before proceeding and she aligns herself with that view. Does the delay lie with the Hawks or with the NPA? Yet the head of the NPA argues that the head of the Hawks had misled the Committee. She agreed with Adv Breytenbach that Adv Abrahams had completely thrown Lt Gen Matakata under the bus. Lt Gen Matakata had clearly stated that the NPA delayed matters which allowed Atul Gupta to escape the country. What could Lt Gen Matakata gain by misleading the Committee? In her view it is clear that all the NPA has to offer by way of explanation are excuses. The Guptas were aware the Hawks were on the verge of arresting them and therefore decided to leave the country never to be seen again. A Gupta member had entered the South African embassy in Dubai for no other reason than to presumably thumb his nose at the ambassador. Adv Abrahams had emphatically denied that Lt Gen Matakata had ever raised her concerns about the NPA delays.
Ms Kohler Barnard proposed that the former Minister be called to testify before the Committee to clear up this once and for all. While the NPA and DPCI were working together, they claimed that the investigation was ineffective yet decided to delay further investigation until the end of the festive season. She agreed that such an approach was completely unacceptable and absurd. SAPS Members work everyday throughout the festive season. It is completely unacceptable for NPA and DPCI members to go on holiday when such a serious matter is ongoing. The NPA was clearly of the view and satisfied that DPCI would keep watch on the potential accused. On 06 December 2017 DPCI raised the arrests yet the NPA insisted on not moving forward with arrests. The only reasonable conclusion was that the delay of some seven months was politically motivated and perhaps the NPA itself should be investigated about that. What does this tell the public about the competence and independence of the NPA? The prosecutor led investigation clearly did not work in this instance. If the NPA was dissatisfied with the manner in which DPCI was conducting its investigations, then the fault clearly lay with the NPA as the NPA was the one advising DPCI on what to investigate. All the primary suspects left the country at more or less the same time the docket was handed over. The conclusion to be drawn from this, is that they were aware of what the docket contained and needed time to transfer assets and other valuables or evidence outside of the country. Someone in the NPA or DPCI clearly passed on that information to the suspects. Arrests should have occurred some eight months before and it is appalling what has happened thus far. She commented that the NPA decided not to bring Acting AFU Head, Knorx Molelle, to the meeting. He was of the view that Adv Abrahams had obstructed the case. He should be brought before the Committee to give his view on that matter. Overall she was completely shocked at the way in which the NPA in particular has conducted itself in this investigation.
Mr Z Mbhele (DA) stated that it was not only a DPCI perspective, there has long been a perception that the NPA has obstructed or delayed the finalisation of investigations and prosecutions. The same perception was given by the Independent Police Investigative Directorate (IPID) that in the bulk of the matters they had investigated, the NPA unduly delayed in taken prosecutorial decisions. In the majority of cases where the NPA declined to prosecute, the IPID was unhappy with those decisions and often with good reason. As the NPA is aware, soon the Auditor General will be empowered to make direct referrals for prosecution to the NPA. If the problems of delays and bottlenecks continue, not only will the Portfolio Committee on Police and the Portfolio Committee on Justice be breathing down their necks, but also the Standing Committee on Finance, SCOPA and the Auditor General. As a general comment, how cases are managed is a matter of concern that must be urgently addressed.
The input from Adv Abrahams indicated that the key disagreement was whether by November 2017 the investigation by the Hawks was completed and the docket was ready. The NDDP says those investigations were not finalised and the docket not handed over. The DPCI head however says the investigation was completed and the docket handed over. The thread that ran through Adv Abrahams presentation was that the NPA team kept raising objections about procedural shortcomings and technical gaps in the work of DPCI, as a justification for not proceeding.
It is very easy then to form a perception that the constant raising of those technical points was intended to obstruct the completion of the investigation and – at the very least – give support to the narrative that there is an ulterior motive on the part of the NPA for not finalising the investigative process. As noted by Adv Breytenbach there was a considerable amount of information in the public domain which already gave impetus to the conclusion that criminal acts had occurred and all that was required was for the NPA to verify that information. Why did the NPA adopt a view that an absolutely watertight prima facie case was necessary before an arrest could be made? His understanding is that the mere fact of being a suspect is sufficient. People are arrested as suspects on a daily basis while there is an ongoing investigation, which is even more warranted when a suspect is perceived to be a flight risk. He asked DPCI if it would not have been prudent to effect simultaneous arrests to prevent suspects from been tipped and escaping? Why was that approach not taken? It was mentioned there was monitoring of suspects in acknowledgement that they constituted a flight risk. What exact measures were implemented to mitigate the risk of those suspects fleeing the country? For example, was there any coordination with Home Affairs or the Department of International Affairs and Cooperation (DIRCO)? Did the NPA and DPCI really adopt a truly integrated approach? Why are the different legs under the state capture investigations not housed under the same banner of the Anti-Corruption Task Team to enhance alignment and effectiveness?
Mr T Mulaudzi (EFF) noted with concern Adv Abrahams’ comments blaming Lt Gen Matakata for publicly informing Parliament of her concerns and frustrations with the NPA on the state capture investigations. It was common cause that the NPA had taken almost a year to decide on whether to proceed with this matter. It is a serious concern that the NPA appears to be engaging in selective prosecutions. The EFF had opened several criminal cases and no movement had occurred whatsoever. Adv Abrahams had not hesitated to charge the former Minister of Finance Pravin Gordan and Adv Breytenbach with trumped up charges. Yet at the same time he drags his feet when it comes to the prosecution of state capture related offences. Adv Abrahams had mentioned establishing a coordinated task team. Yet in that 18-man team, no DPCI officials were included. Did he intentionally exclude the Hawks from that task team? What is the involvement of the NPA in cooperating with DIRCO to prevent people from skipping the country? The Hawks had finalised their investigation in November 2017 and gave the docket to the NPA on that date. However, the NPA still thought it was necessary to engage the services of a private law firm and a forensic firm before proceeding. Was this a parallel investigation or does the NPA not trust the information submitted to them by the Hawks?
The NPA significantly delayed in making any arrests on the Vrede dairy farm matter which has been in the public domain for more than a year. There is no reason why arrests cannot be effected and then further investigation take place after the arrests. This is common practice. It is only when the Gupta family is involved that the NPA delays making any arrests with excuses such as the need to obtain a financial analysis. The AFU had obtained a preservation order for the Vrede matter yet no suspects were arrested. Knorx Molelle had stated that Adv Abrahams and Adv Govender had actively prevented him from issuing arrests for those implicated in that matter. The common belief now is that the NPA is completely politically captured. This is part of the reason why the cases lodged by the NPA are not taken seriously or properly investigated. Adv Abrahams has taken a partisan political approach which is highly concerning. It could be necessary for disciplinary proceedings to be instituted against the NDPP with the cooperation of the Justice Committee to determine whether the NDPP is fit to occupy his position. It is unacceptable for the NPA to delay arrests over the December period simply because the NPA and DPCI thought it was justified to go on holiday and in turn allow all of the primary suspects to escape. The role of the NPA is to charge suspects and then the courts will determine whether there is sufficient evidence to convict. Overall the NPA had been pursuing this at a snail pace, which appears to be its approach only when dealing with sensitive political matters or state capture related offences.
Mr P Mhlongo (EFF) noted that in 1972 President Nixon was implicated in the Watergate Scandal. In 1974 he resigned thanks largely to the work of the FBI. In 2005 Judge Hilary Squires gave a judgment that former President Zuma was directly implicated in corruption with Schabir Schaik and arms companies. Today we find ourselves in a situation where several inquiries have occurred where a number of individuals have fallen on their swords. The judiciary itself has acknowledged that South Africa has become a lawless state. It is shocking to hear that the NPA waited until the end of the ANC conference in 2017 before taking any action. The evidence of corruption and crime involving the Gupta family as facilitated by President Zuma is squarely within the public domain. The professionalism of crime enforcement is completely lacking, and those institutions have been utterly destroyed. The former Public Protector had already instructed the Hawks to investigate this matter as far back as 2016. It is astonishing that the Vrede Project, an initiative intended to benefit the poorest and most vulnerable, was facilitated by Mr Zwane who remains a Member of Parliament. It was obvious that the Guptas planned to flee the country if the faction they backed did not win at the ANC elective conference at the end of 2017. Even the Indian law enforcement authorities have acted against the Guptas. In contrast, the Guptas are free to act as they wish in South Africa even utilising a military base as their private airport. Duduzane Zuma cannot be located and the Hawks are unable to locate him.
Mr Maake raised a point of order. He requested that Mr Mhlongo cease from making a political speech and focus on the agenda of the meeting.
Mr Mhlongo replied he is a Member of Parliament and is entitled to speak his mind.
Chairperson Motshekga replied he respects the right of Mr Mhlongo to speak his mind. However, he requested he confines his comments to the issues at hand in the interests of time.
Mr Mhlongo stated the country is suffering from its own collective foolishness as a nation for not acting sooner on this. By shutting down the Scorpions we intentionally and foolishly placed ourselves in the situation in which the country finds itself today. The Scorpions ferociously decimated the criminal elements within the state. State Capture is not limited to the Vrede matter. There are a multitude which remain untouched. Even the NPA itself has not taken a firm decision on whether to charge former President Zuma.
Chairperson Motshekga assured the Committee they have no intention of suppressing Members when they put forward their questions. However, each Member has an equal right to put questions and they cannot allow Members to dominate the meeting or raise issues not directly relevant to the current meeting.
Mr L Mpumlwana (ANC) appreciated the spirit in which DPCI and the NPA had cooperated. He hoped that the committee envisaged under section 17D of the SAPS Act would meet regularly and solve any bottlenecks in the prosecution of crime. It was hoped that only serious issues which could not be solved without the assistance of Parliament could be resolved within that formal process. He hoped that other state capture crimes, such as that relating to Glencore, would be investigated.
Mr G Skosana (ANC) was happy to hear there was no standoff between the NPA and DPCI. However, there is a perception and allegation that the NPA engages in selective prosecutions. This becomes all the more serious when entities such as IPID, allege that the NPA engages in selective prosecutions. Is that allegation true and if not, why is there such a perception? Is there a timeframe in which the NPA envisages they can resolve the outstanding matters to put both the Committee and the public at ease?
Chairperson Beukman had two questions for Adv Abrahams. Did he raise establishing the operational committee with other role players such as the Minister of Justice, Directors General and Ministers in the security cluster? It is essential to have that committee in place to streamline processes and create a better liaison between the different departments. Secondly, on the timeline from December 2017, was there any reason – apart from technical and procedural reasons – for not proceeding with the Estina matter during the December 2017?
Chairperson Motshekga noted Adv Govender used to be the DPP in the Western Cape. The events in question took place largely in Gauteng and the Free State. There are number of experienced people in the NPA. Why would it be necessary to take a Western Cape DDP when there should be senior people available in Gauteng and the Free State? Adv Govender appears to be central to this investigation. Is she being groomed for promotion? There is also a perception – which arose from the Justice Portfolio Committee meeting with the Public Protector the previous day – that law enforcement is not focusing on the primary political role players at the centre of the state capture allegations. Estina was politically driven from the outset, yet the Public Protector focused primarily on low level officials and not the political heads of that scandal. Could this not justify the perception that the NPA engages in selective prosecutions? Why does it seem to be that the NPA – and law enforcement generally – appear to take no real action against prominent politicians implicated in these matters? The law must be applied without fear, favour or prejudice regardless of the standing or position of those individuals. Justice must be seen to do be done.
Lt Gen Matakata stated at the outset that she did not have prior access to Adv Abrahams’ presentation. She would provide a comprehensive response to address all of the issues raised.
Responding to Mr Mhlongo, she had indicated at her previous appearance before the Portfolio Committee on Police that there are matters which have been with the NPA for over a year. She would provide a list of those matters to the NDPP pursuant to his invitation to do so.
Assertions or perceptions that DPCI and the NPA are at loggerheads are not correct. DPCI and the NPA meet regularly and enjoy a collegial and professional relationship. Both the NDPP and herself are clear about their mandates and the cooperative approach which that mandate requires.
A comprehensive response would be provided on the measures DPCI implemented to monitor suspects who posed potential flight risks. She emphasised that in the absence of an arrest warrant, it would not have been possible to flag individuals who were at that time not wanted for arrest or prosecution. There has been an indication that some of the suspects had already left by August 2017. Only two suspects had fled by that time and therefore it is incorrect to state that the majority of suspects escaped. DPCI cannot flag any person as a potential flight risk without an arrest warrant being issued. To do so would most likely result in DPCI breaking the law.
Adv Abrahams replied that there is absolutely no intention on his part to create a perception that he had thrown Lt Gen Matakata under the bus. His presentation was merely the historical and objective facts which led to the engagement necessitating the meeting before the Committee. He reassured the Committee that Lt Gen Matakata and himself have a collegial, professional and friendly working relationship. He fully apologises to Lt Gen Matakata if a perception was created that he intended to throw her under the bus.
He replied to Ms Molebatsi that the NPA – during their strategic planning session in 2017 – had taken a decision to adopt an aggressive approach to the combating of crime. The DPPs and the various Special Directors were given the authority to determine when it would be justified – within areas of their jurisdiction – that investigating directorates should be established. The NPA commits to work closely with DPCI and other stakeholders to strengthen the fight against crime. While the NPA Act permits the President to establish an investigating directorate, the NPA took a decision not to adopt that approach last year. Section 72 of POCA and section 22 and 23 of Prevention of Corruption Act (PRECA) make provision for the NDPP to appoint special directorates. The Hawks also have the power under the SAPS Act to request the NPA to implement prosecutor guided investigations. The time has come for such an approach to be adopted and further engagements with DPCI would occur to that effect. Directly responding to Ms Molebatsi, it cannot be said that a mere delay in a matter could necessarily be perceived as sabotage. He personally is not aware of any matter that has been deliberately delayed nor is he aware of any state capture matter which can be described as having been deliberately sabotaged.
On suspects who may have fled the country, the intention of the NPA is to apply for extradition back to South Africa. The challenge however is that if a suspect is extradited for a specific offence – such as the Estina matter – then the NPA will be barred from prosecuting those individuals for other matters which they may potentially be linked to. This does create a difficulty for prosecuting all of the offences and must be considered with reference to the bigger picture.
Adv Abrahams stated he could not comment on the various legs in the state capture investigation. People are innocent until proven guilty. It would be improper for him – at this stage – to publicly comment on who may, or may not, be a suspect in various investigations.
Adv Govender replied to the question of who took the final decision for the search warrants. He did not personally take that decision and was merely briefed on the decision after it was made, as was Lt Gen Matakata.
Adv Malindi Govender, NPA Specialised Commercial Crime Unit Head, replied about who took the final decision on the arrest warrants. The NPA and DPCI operate according to a multi-disciplinary and cooperative approach. The NPA gives guidance and direction to DPCI in such investigation. The ultimate responsibility to pronounce upon the sufficiency or otherwise, rests with the NPA. In making those pronouncements however the NPA will inform DPCI which evidence would be required and the manner in which the investigation should proceed to obtain that evidence. The impression that NPA takes decisions in isolation from DPCI is incorrect and vice versa. The final decision of whether a warrant should be issued was a joint decision. That decision was made by investigators and prosecutors jointly. When reservations were made, those reservations were communicated to her and Brigadier Basi who then made further enquiries. The ultimate decision whether to grant the arrest warrant was a decision taken jointly by the prosecutors and the investigating officers from DPCI. The process requires that a police official provides a J50 document to the NPA together with an affidavit. The affidavit sets out the allegations in support of the conclusion that there is a prima facie case sufficient to justify an application for an arrest warrant as well as the grounds to establish a flight risk. The reason the NPA requested information was because – as based on case law – magistrates in the past have refused to issue arrest warrants where insufficient information was placed before them to justify that the suspect was a flight risk. This was the reason additional documentation and information was sought to ensure the arrest warrant application complied with all of those requirements. If the NPA had proceeded with an arrest without a warrant, it would have given rise to substantial legal consequences which would have been scrutinised by the accused's defence counsel. That process did take some time, but it was dealt with jointly and neither DPCI or the NPA operated in isolation from one another.
Chairperson Motshekga noted it was worrying for the NPA to continue referring to a prima facie case as the applicable standard necessary to justify an arrest. As noted by Mr Mulaudzi, is an arrest justified when there is a reasonable suspicion? Is it necessary for the prosecution to establish a prima facie case only at the end of the case?
Adv Abrahams replied that the other seven legs are still subject to investigation. The only people sufficiently well equipped to comment on those investigations is the prosecuting team. However, as noted earlier, he cannot go into the merits or the facts at this point.
The leaking of information from the NPA has always been a problem. This problem can be traced back to the creation of the NPA. In the majority of cases, leaked information comes from disgruntled employees and the leaked information is misinformation. He can assure the Committee the majority of those leaks comes from disgruntled people who want to appear relevant. There was a long discussion on the leaking of information in the state capture investigation. The prosecuting team itself had been isolated and the members of the team were not revealed, which was a deliberate decision to prevent the leaking of information. As far as he is aware, no information from the prosecuting of investigating team has been leaked.
His understanding was that if any issues arose, those issues would be resolved using internal mechanisms. If any required the intervention of himself or Lt Gen Matakata, appropriate instructions and directives would be issued to resolve those issues.
On the perception that the NPA engages in selective prosecutions, it is clear that many people do not fully understand the structure and functioning of the NPA. The common perception is that the NDPP makes all of the decisions to prosecute. Thousands of cases are prosecuted every day and he only takes a decision on a small number of matters where policy directives are not adhered to or where he reviews the matter. The majority of those decisions are taken by the appropriate DPPs in each province and the same applies for special directors. Those decisions however are made in the name of the NDPP but that does not mean that he personally makes those decisions contrary to common perception.
Chairperson Motshekga requested Adv Abrahams to refrain from giving a lecture. The perception raised by Members did not have to do with the processes of the NPA per se. Rather it had to do with the perception that prominent politicians or other individuals are not prosecuted by the NPA.
Adv Abrahams replied that it was necessary to outline the processes of the NPA to fully dispel that perception.
Ms Molebatsi stated the NDPP would do well to remember that whilst he is the head of the NPA, he is in Parliament and should act accordingly. He is not the head of Parliament and should show the appropriate degree of respect and decorum which the institution requires.
Chairperson Motshekga again requested Adv Abrahams to refrain from giving lectures. The question was a simple one. Does the NPA engage in selective prosecutions or not?
Adv Abrahams replied he emphatically and in no uncertain terms, disagrees that the NPA engages in selective prosecutions. The DPPs who make decisions to prosecute do so independently from the NDPP and he intervenes only when necessary and if policy directives are not adhered to.
Mr Mhlongo took issue with Adv Abrahams response. It is absurd for him to believe that prosecutors do not take instructions on certain matters through the direct intervention of Adv Abrahams.
Chairperson Motshekga requested that Mr Mhlongo allow Adv Abrahams to finish his response.
Turning to the next issue, Adv Abrahams replied that there are around 100 cases referred to in the SCOPA report, but he was not in a position to comment on that matter at this meeting.
He rejected the perception that there is a fragmented approach to investigations between the NPA and DPCI. Both institutions engage in prosecutor guided investigations which compel both entities to work together. As noted by Adv Govender, both teams worked closely at all times and did not make decisions in isolation from one another. This is part of the SCCU methodology.
Chairperson Beukman stated that if there was indeed close cooperation between DPCI and the NPA, why then did the NPA request additional reports at the end of the process; which leads to the opposite conclusion?
Chairperson Motshekga stated that the Committee and the public want to know more about why there has been a lack of action and secondly why prominent politicians and individuals have not been acted against.
Adv Abrahams replied that during the process of any investigation there may be disagreements between different individuals on the appropriate manner of proceeding. However, the people best placed to answer those questions would be the lead prosecutor and the lead investigator and not necessarily himself.
On why no politicians have been charged, Adv Abrahams replied that the court matter is still subject to investigation and has been postponed to August 2018. This does not mean that further arrests will not be forthcoming at a later date. To publicly state that person X or Y will be subject to investigation or be charged is inappropriate. He implored the Committee and the public to allow the investigative process to take place. The Constitution clearly states that every person is innocent until proven guilty. If the investigation warrants that additional people be charged, then that process will take place.
Chairperson Motshekga repeated that there is a perception that the NPA does not charge or investigate prominent politicians or other influential individuals. He does not expect the NDPP to violate the rights of people who are innocent until proven guilty. His question is that there is a public perception that the NPA deliberately refrains from charging or investigating prominent individuals and he wants Adv Abrahams to speak on that.
Adv Abrahams responded that on state capture or any other matter, nobody against whom there is a prima face case – and against whom the interests of justice dictate be charged and prosecuted – will be permitted to escape justice.
Mr Ramatlakane stated that the response of Adv Abrahams was inadequate. He failed to explain why the individuals charged in the Estina investigation are been treated separately from other investigations. All of the crimes are inter-related and there is no real reason to adopt a fragmented approach. Additionally, it appears – once again – that low level officials are being targeted at the expense of high-level politicians and other prominent individuals.
Adv Abrahams replied that in many investigations the approach is to draw a distinction between different categories of offenders as part of the overall prosecuting strategy. In this case however those charged do have a prima facie case against them. If a person is charged without a prima facie case against them the matter will be thrown out of court. That is the reason further investigations had to be instituted to ensure that a prima facie case can be established before the matter reaches the court.
Mr Ramatlakane said Adv Abrahams did not sufficiently answer his question.
Adv Abrahams replied that he cannot – at this time – divulge any further information in the public domain as to do so would undermine prosecutions or investigations and therefore – in this respect – the criminal justice system must be allowed to run its course.
Adv Abrahams replied that the Knorx Molelle allegation that he obstructed Adv Molelle from instituting arrests of politicians, was untrue, because the AFU does not have the power to effect arrests.
On the perception that the NPA and DPCI put everything on hold because of the festive season, is untrue. The work in this matter was continuous and ongoing and the NPA had already obtained a preservation for R1.3 billion for the McKinsey matter. If the NPA had stopped its work at the time, they would not have proceeded with that preservation order. The reason the preservation order for Estina was only obtained in January 2018 was because that was the date the application was set down for hearing. The perception that prosecutors and investigators simply went on holiday at the end of 2017 is something that the lead investigator and lead prosecutor would be better placed to respond to.
In respect of Estina, it is not proper at this stage, to publicly divulge what information or investigations are still outstanding. To do so would violate the proper administration of justice which has been affirmed in numerous court decisions.
He emphatically denied that he had delayed or withheld information or permission to proceed on any matter. His approach was always that all matters should be dealt with as expeditiously as possible. He emphatically denied that this was a bungled or incompetent investigation by the NPA. While the police have the ultimate power to make arrests, it is the prerogative of the prosecution to determine whether the charges laid will ultimately result in a successful prosecution at the end of the day.
On allegations from Mr Mulaudzi that complaints laid by the EFF are not investigated, he invited the EFF to inform him personally of those matters and he would make the relevant enquires to ensure that matters are properly dealt with.
He rejected the notion that he rushed to charge Adv Breytenbach or Mr Pravin Gordhan. He personally did not make any of those decisions and would – if required – be happy to go into the merits and processes resulting in those decisions.
Letters of request for mutual legal assistance were sent to other departments such as DIRCO through the Director General of Justice. He is unsure however whether there have been any engagements with DIRCO, but ordinarily in large matters involving other nationals or countries then engagements with DIRCO and other Departments would ordinarily be made.
The Estina court matter is currently postponed until the end of August 2018 so any investigations would have to be finalised before that date. On the other investigations, the people best placed to inform the Committee of their progress would be the lead investigators and prosecutors in those investigations. He emphatically rejected any notion that he personally had delayed any arrests. He personally does not make decisions as to who should or should not be arrested. This is part of a misinformation narrative which has been placed in the public domain and it is completely incorrect.
He emphatically rejected as false any notion that the NPA is politically captured. There around 22-23 Presidential appointments in the NPA. The majority of NPA prosecutors are career prosecutors. If someone states the NPA is politically captured, he invites evidence to that effect. Prosecutors are hardworking people who make a number of sacrifices to serve justice. To state they are politically captured is insulting. He personally has made a number of sacrifices to serve the NPA as have many other prosecutors and to impugn the integrity of NPA prosecutors by stating they lack independence, is irresponsible.
There is no sinister reason or ulterior motive for not bringing Adv Knorx Molelle as it was decided that his presence would not be necessary to comment on the matters before the current meeting.
IPID allegations that the NPA engages in selective prosecutions are incorrect. IPID refers several matters to the NPA and the NPA prosecutes a number of matters and declines others. It is not correct to have a perception that simply because a matter has been referred to the NPA that a prosecution will follow. The prosecutors in the matter may then come to a different conclusion on whether there is possibility of conviction that is held by IPID investigators.
Chairperson Motshekga stated it would be preferable to adjourn the meeting and reconvene at a later date. He was not persuaded that the current meeting was making progress in getting to the bottom of what the stumbling blocks are in prosecuting state capture allegations. The relevant Ministers – such as the Minister of Police and Minister of Justice – should attend so that the Executive can also have input on these issues. Bare denials from Advocate Abrahams were not assisting and furthermore it is not possible to stop the public and society generally from having perceptions on issues affecting the NPA and crime enforcement.
Chairperson Beukman put the suggestion to the floor to reconvene at a later date with the relevant Ministers.
Mr Maake agreed with Chairperson Motshekga. The intention of the meeting was not to engage with the operational issues of the NPA or DPCI. All that is required is that both entities have a good working relationship, which both have assured the Committee exists. Whether negative perceptions about the NPA and DPCI and whether those perceptions are correct, is not necessarily the issue. What the Committee requires is a concrete assurance that work will be done. It is incorrect for Adv Abrahams to adopt a view that the Committee is attempting to interfere with the independence of the NPA or its work. At the end of the day both entities are accountable to Parliament and specifically to the Portfolio Committees on Justice and Police respectively. The Committee’s main concern is that there is a general lack of action in investigating and bringing to conclusion the state capture investigations and prosecutions.
Mr Ramatlakane fully agreed with the suggestion of the Chairperson and stated that the Committees should be given copies of Adv Abrahams’ presentation and that of DPCI. Additional information should also be acquired before the next meeting. It appears that the multi-disciplinary approach between DPCI and the NPA is not making sufficient progress and additional information should be given before the next meeting to make an informed decision on whether that is the correct and most effective approach. Frankly, the Committee has not received answers; instead they have received explanations and are in better position to resolve these issues than was the case before the meeting began.
Ms Kohler Barnard agreed that the meeting should be adjourned, and the relevant Ministers should be summoned to get to the bottom of this. It was reiterated that at no stage, were details of investigations requested despite much defensiveness on the part of Adv Abrahams. All that has been provided is excuses and a later meeting with the Executive heads would be necessary to resolve all the outstanding issues.
Chairperson Motshekga stated that the purpose of the meeting was to resolve the stumbling blocks in the state capture investigations and prosecutions. It is good that the Committee has been reassured DPCI and the NPA can work together but that is not enough in addressing their concerns. The relevant Ministers would be requested to appear before the joint Committees as well as DPCI and the NPA. The perceptions of society have arisen as a result of the perceived lack of action by the NPA and DPCI. Parliament would be abdicating its duty to society if it does not address those concerns or perceptions, regardless of how true or untrue they may be.
Mr Mulaudzi stated it would be advisable to also invite Adv Knorx Molelle to the follow up meeting as well the NPA representative in the Free State and Gauteng.
Mr Mhlongo said a comprehensive report should be sourced from other Parliament Committees dealing with state capture which would assist in further getting to the bottom of state capture.
The meeting was adjourned.
No related documents
Beukman, Mr F
Breytenbach, Adv G
Horn, Mr W
Kohler-Barnard, Ms D
Maake, Mr JJ
Matiase, Mr NS
Mbhele, Mr ZN
Mhlongo, Mr P
Mmola, Ms MP
Molebatsi, Ms MA
Mothapo, Ms MR
Motshekga, Dr MS
Mpumlwana, Mr LKB
Mulaudzi, Adv TE
Ramatlakane, Mr L
Skosana, Mr GJ
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