Hawks not authorised to investigate establishment of SARS “rogue unit”

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

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

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

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

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

This week Max du Preez alleged that a key reason for the hostility in certain circles against finance minister Pravin Gordhan is a dossier in the safe at SARS headquarters “containing dynamite allegations of corruption, fraud, front companies and foreign bank accounts against prominent benefactors of President Jacob Zuma”. Du Preez alleges that:

Several billions of rands are at stake and Zuma would be extremely embarrassed if the alleged dossier were to be acted upon. It could well open him up to prosecution himself and/or to a massive income tax bill – at least for evading donations tax.

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

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

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

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

A perusal of the National Strategic Intelligence Act suggests that the Sikhakhane Report may have relied on section 3 of the Act to come to the conclusion that the establishment of the so-called “rogue spy unit” by SARS was unlawful.

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

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

This means that the National Strategic Intelligence Act does not prohibit a government entity such as SARS from gathering intelligence. Nor does it prohibit SARS from gathering intelligence covertly. It does confirm that the covert gathering of “departmental intelligence” (in other words, intelligence relating to a potential threat to the national security and stability of South Africa) by SARS would be in breach of the Act.

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

But even if we assume for the moment that such allegations have been made and that there may at least be some evidence that the unit covertly investigated threats to national security in contravention of the Act, there is no legal basis for the Hawks to investigate whether the unit was legally established or not. This is because the Hawks can only investigate certain criminal offences. It is not empowered to investigate non-criminal related unlawful activity.

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

Not all unlawful acts are criminal. For example, a by-law that prohibits a home-owner from allowing a tree in his or her garden to encroach on the property of a neighbour may not create a criminal offence and the owner could then not be arrested and imprisoned for acting unlawfully. The owner may, of course, be ordered to comply with the provisions of the Act. The prohibition contained in section 3 of the Act thus regulates conduct without criminalising it.

Moreover, given that the Act does allow departments to gather certain types of intelligence, it is not clear how the establishment of the unit could have been unlawful – unless it was deliberately set up to investigate threats to national security. However, some of the actions taken by members of the unit could unlawfully have contravened section 3 of the Act.

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

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

This does not mean that anyone who authorised the possible breach of section 3 of the National Strategic Intelligence Act should not be held accountable. If government officials or politicians acted in breach of the law appropriate action should be taken against such officials or politicians. But the Hawks would not be the appropriate body to investigate such breaches as  these alleged breaches did not constitute criminal offences.

However, judging from the 27 questions sent to the Minister of Finance the Hawks is not only investigating the establishment of the so called “rogue spy unit”. It is also apparently investigating allegations made by two former SARS officials, Helgard Lombard and Johan de Waal, who claims that former SARS commissioner Ivan Pillay authorised “Operation Sunday Evenings” to spy on then National Director of Public Prosecutions, Vusi Pikoli, and other NPA members, among other things by the bugging or installation of sophisticated surveillance equipment at the National Prosecuting Authority Offices.

Lombard was not a member of the so-called “rogue spy unit”, but rather of a SARS unit that investigated its SARS officials suspected of corruption.

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

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

Judging from the questions sent to Minister Pravin Gordhan the Hawks investigation seem to be conflating two legal issues. On the one hand, inexplicably, the Hawks seems to be asking questions about the establishment of the alleged “rogue spy unit”. On the other hand, it seems to be asking valid question about the possible criminal activity relating to the alleged illegal bugging of conversations. (I make no claim about whether these allegations are fabricated or not.)

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

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