By Chantelle Benjamin
Three months after it was announced that National Prosecuting Authority (NPA) Pretoria head Glynnis Breytenbach was asked to submit a response to charges against her, she has been suspended, and it seems that far from working to stabilise the law enforcement leadership, the post-shuffling and removal of staff continues unabated, plaguing not only the Special Investigation Unit (SIU) and the NPA, but now the police service as well.
In February, Corruption Watch reported that charges against Breytenbach were being submitted amid a game of “musical chairs”, involving heads of the NPA and SIU, some of whom have been appointed despite being considered controversial.
Now there is much speculation that crime intelligence boss Richard Mdluli is tipped as the replacement for National Police Commissioner Bheki Cele, who is awaiting the outcome of an inquiry into his fitness to hold office relating to police lease deals for head offices in Durban and Pretoria. The deals have since been withdrawn.
There is speculation that the action against Breytenbach was linked to her involvement in the arms deal probe or the fraud case against Mdluli. Fraud charges against Mdluli were withdrawn in December, despite Breytenbach’s alleged heated objections, and he was reinstated as crime intelligence boss in March.
Following the announcement of her suspension on 30 April, Breytenbach’s lawyer Gerhard Wagenaar said the charges relate to the case involving the politically connected Imperial Crown Trading (ICT).
ICT and Kumba Iron Ore were involved in a battle over a multibillion-rand Sishen iron ore mining deal. It was first awarded to ICT and then, after the deal was invalidated in the North Gauteng High Court, it was awarded to Kumba. Breytenbach was the prosecutor in the case and is alleged to have been too close to Kumba – in particular its lawyer Mike Hellens.
Mdluli’s link to NPA’s acting director
One of the reasons for the speculation around Breytenbach’s suspension, is that Mdluli has links to acting national director of the NPA, Adv Nomgcobo Jiba. He came to her defence after she was suspended in 2008 for allegedly assisting a police investigation against her colleague Gerrie Nel, who was at the time Gauteng head of the now disbanded Scorpion unit. Her intention was allegedly to protect National Police Commissioner Jackie Selebi from arrest.
Mdluli filed an affidavit in support of Jiba, in which he allegedly claimed he had access to telephone calls that showed Nel was being protected by the NPA.
Also suspended with Jiba for action against Nel was the present head of the Commercial Crime Unit, Lawrence Mrwebi, making him yet another controversial appointment.
Democratic Alliance (DA) MP Dene Smuts believes Breytenbach’s suspension has more to do with Mdluli than with the ICT.
In a statement following Breytenbach’s suspension, Smuts said: "The suspension has been widely interpreted as intimidation of a prosecutor who insists on doing her work without fear or favour and who resisted the dropping of fraud charges against crime intelligence boss Richard Mdluli.”
Concern: top spots filled by acting heads
It is of concern that not only the top position of the NPA, but the top police and SIU positions are being filled by people in an acting position, in the case of the SIU, by Adv Nomvula Mokhatla.
Ironically, Mokhatla replaced Jiba, who was acting head of the SIU for only a week, following the resignation of Adv Willem Heath, who replaced Willie Hofmeyr, now head of the Asset Forfeiture Unit.
Heath’s tenure as national director of the SIU was cut short after he accused former President Thabo Mbeki of orchestrating the rape and corruption charges against President Zuma. These are allegations Mbeki denied.
This constant stream of SIU heads has slowed down progress at the key unit, Corruption Watch has reliably been told.
Jiba was appointed as acting national director of the NPA, after the Supreme Court of Appeal struck down the appointment of Menzi Simelane as head of the NPA.
The court found that Justice Minister Jeff Radebe failed to consider objections to Simelane’s appointment or to consider his predecessor Vusi Pikoli.
Simelane was also a contentious decision.
Dr Frene Ginwala, former speaker of the national assembly, was appointed by President Thabo Mbeki to investigate the fitness of former prosecuting head Vusi Pikoli to hold public office, before Simelane’s appointment. She criticised Simelane, who was director general in the Justice Department at the time in her final report, calling him arrogant and condescending towards Pikoli.
Ginwala called his evidence before the inquiry “contradictory and without basis in fact or law” and blamed him for suppressing the disclosure of information, specifically the legal opinion given to Simelane that he did not have authority over the NPA.
She also suggested that Simelane may have contravened the NPA Act by drafting a letter to Pikoli that instructed him to halt the imminent arrest of Selebi. Simelane’s appointment was criticised by opposition party the DA and Archbishop Desmond Tutu, among others.
Simelane’s replacement, Jiba, has also found herself in the headlines yet again, after it emerged this year that President Zuma had expunged her husband’s criminal record in September 2010.
Former deputy director of the Eastern Cape Scorpions, Booker Nhantsi received a criminal record for stealing a client’s money from his trust fund. The president’s spokesperson Mac Maharaj has said it was felt that Nhantsi still had a contribution to make to society.
New Commercial Crime Unit head Mrwebi also comes to the position with baggage. He replaced Adv Chris Jordaan formally in November 2011 after Jordaan was allegedly medically boarded in March.
Apart from Mrwebi’s involvement in the case against Nel, the former KwaZulu-Natal Scorpions boss testified at the corruption trial of former police commissioner Jackie Selebi, arguing that there was a Scorpions conspiracy against the former top cop.
It is now alleged that the withdrawal of the fraud charges against Mdluli and the supply chain manager for the crime intelligence’s secret services account, Col Heine Barnard, was carried out on Mrwebi’s instruction. It’s alleged that Mrwebi approached Breytenbach to drop the case against Mdluli shortly before she was suspended.
Mdluli’s powerful connections
Mdluli’s name has become increasingly entwined with many of the allegations surrounding the law enforcement sector, a concern considering he is head of police’s crime intelligence.
Paul Hoffman, director of the Institute for Accountability in Southern Africa, expressed concern that someone in Mdluli’s position has substantial power and access to confidential information on politicians and other key figures.
A case in point is the bugging of the cellphone of suspended police commissioner Cele. It’s alleged that Mdluli, widely believed to be Cele’s replacement, signed off the application. Cele suspended Mdluli following the murder investigation, and Mdluli is alleged to have claimed that Cele is responsible for trying to oust him from the police.
A letter, in Corruption Watch’s possession, allegedly sent by Mdluli last year to President Zuma, as well as acting national police commissioner Lieutenant General Nhlanhla Mkhwanazi and Police Minister Nathi Mthethwa, Mdluli alleges a conspiracy against him by senior officials including Cele, Anwa Dramat, head of the Directorate of Priority Crimes (Hawks), deputy commissioner for crime detection, Godfrey Lebeya and Gauteng police commissioner Mzwandile Petros.
If Cele is removed, and Mdluli selected to replace him, it will do little to increase confidence or introduce stability into the law enforcement sector, especially since Mdluli is facing a murder inquest and the possible reintroduction of fraud charges. It has emerged that the Hawks investigation is ongoing despite fraud charges being withdrawn in December last year.
Mdluli is going to have to testify in September at a murder inquest into the death of an ex-girlfriend’s husband, Oupa Ramogibe. Efforts by Mdluli to receive legal aid for his lawyer were turned down this week, although his lawyer Ike Motloung has indicated he will ask for a review of the decision.
With regard to the fraud charge, it appears that Mdluli is still under investigation. Mkhwanazi told parliament during a briefing on the South African Police Service’s strategic plans for 2012/13 in April that Mdluli was still under investigation for fraud, but would not elaborate further.
It is not clear from Mkhwanazi’s statement to parliament if the probe might involve a new set of charges involving the abuse of the police’s R300-million slush fund, or a more in-depth investigation of the previous charges.
Mdluli was initially charged with defrauding the police and a Pretoria car dealership of more than R90 000.
Slush fund scandal
The recent leaking of a secret report submitted by Hawks investigators to Mkhwanazi in April, and a document by Major General Mark Henkel; head of intelligence analysis, coordination and surveillance; late last year, highlight misuse and abuse by Mdluli and other employees of the police’s R300-million slush fund, misuse of safe houses, appointing of relatives as secret agents within crime intelligence, as well as abuse of at least six vehicles by Mdluli and advances paid out of the fund to crime intelligence employees.
The announcement that murder charges against Mdluli were to be provisionally withdrawn, was made in February this year, shortly before Mdluli was appointed as intelligence head.
Mdluli, who commanded the Vosloorus police station’s detective branch between 1997 and 1999, was accused of getting his junior officers to help kidnap and kill his former girlfriend’s new husband, Ramogibe, in the late 1990s. Initial charges included intimidation, kidnapping, assault with intent to do grievous bodily harm and murder.
Criminal charges against Mdluli and his alleged accomplices Samuel Dlomo, Col Nkosana Ximba, Lt-Col Mtunzi-Omhle Mthembeni Mtunzi were provisionally withdrawn in February, pending the outcome of the inquest.
The withdrawal of the murder and fraud charges have led to speculation that Mdluli has friends in high places. The speculation is aided by the fact that that Mdluli, as Gauteng provincial police commissioner, oversaw the detectives who investigated President Zuma’s rape case in 2006, and he was key in uncovering an alleged plot against President Zuma, allegedly led by Human Settlement’s minister Tokyo Sexwale, to unseat the president at the African National Congress’ Mangaung conference in December.
The South African Police Union, that once accused Cele of nepotism for allegedly appointing friends and members of his family to the police service, in April called for a commission of inquiry following scandals involving Mdluli and allegations that Mthethwa had the wall of his home fixed with money from the crime intelligence slush fund.
Controversial appointments hamper delivery
Corruption Watch head David Lewis this week expressed concern that controversial appointments within the law enforcement divisions will continue to hamper attempts to improve performance and deal with corruption issues.
He warned earlier this year in an article “Post shuffling at NPA, SIU frustrating corruption fight” that the leaders selected were key to the success of law enforcement efforts. “It’s not the place to make controversial appointments that invite constant changes in leadership. It requires strong, stable leadership unblemished by personal controversy. Until that happens we will suffer unacceptable levels of corruption,” he said.
Johan Burger, senior research for the Institute of Security Studies (ISS) Crime and Justice Programme, who has researched the sector or many years, believes poor leadership of the police, starting with Selebi, is undermining the efforts of the police.
“Allegations of ongoing irregularities relating to the business of the SAPS Supply chain management prompted President Zuma to request the SIU to investigate possible corruption in the allocation of the contracts handled by the division in August 2010.”
The investigation is ongoing.
Burger said on one level the SAPS role in protecting and securing the South African public has been taken seriously, with the expansion of the organisation by more than 194 000 people and a R62.5-billion budget – 65.3% of the total criminal justice budget.
“However, in order for the police to be effective against crime, it has to ensure that the public has confidence in it. This will only occur if the SAPS leadership consists of men and women who are highly skilled professionals with the appropriate expertise and whose integrity is beyond reproach.”
Burger said the “many examples of senior officers being implicated in criminal activity and corruption” is eroding both public trust and morale, and is “demonstrative of the extent to which effective leadership is lacking in the SAPS.
Burger said Selebi had no experience in policing when he was appointed national commissioner by then President Thabo Mbeki.
“He made many poor decisions regarding the structure of the SAPS, for example closing down important specialised units,” Burger said, adding that he has since been convicted on a charge of corruption and sentenced to 15 years in prison.
Cele, appointed in July 2009, by President Zuma, was also not a career policeman, having served previously as a politician in the KwaZulu-Natal government, Burger said.
“Cele soon gained media prominence more for his often tactless, and some may argue, irresponsible public utterances than his police leadership qualities.”
Cele first faced allegations of nepotism and now an inquiry into whether he acted “corruptly or dishonestly or with an undeclared conflict of interest” in relation to the police leases.
Crime intelligence unit not spared
The crime intelligence unit has also been fraught with allegations and reports of criminal conduct.
Mulangi Mphego, head of the division during Selebi’s term of office, was accused of a variety of criminal activities, including interfering with a key state witness Glen Agliotti, during Selebi’s corruption allegation, which led to criminal charges being laid against Mphego and his subsequent resignation, said Burger.
“The minister of police, who would ordinarily be responsible for addressing leadership problems, now stands accused of interfering to protect Mdluli, while also irregularly benefitting from the Secret Service Account to the tune of R195 000 for renovations to his private residence and lying about it to the media,” Burger said.
The ISS has called for a judicial commission of inquiry with strong powers of investigation and resources to probe allegations of corruption, its underlying cause and make recommendations on corrective measures.