Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
14 August 2010

Why the Hawks?

Last week members of the Directorate for Priority Crime Investigation (also known as the Hawks) swooped on the offices of the Sunday Times and arrested Mzilikazi wa Africa. Reports suggest that he was arrested for fraud, uttering and defeating the ends of justice for being in possession of a letter purporting to be a resignation letter from the Premier of Mpumalanga. This was already rather odd and disturbing, as being in possession of a fraudulent letter does not constitute a criminal offense.

But throughout the affair something else has been bothering me. Why would the Hawks investigate a matter of fraud and defeating the ends of justice against anyone? Remember, the Hawks was created after the tenderpreneurs like Brett Kebble, the fraudsters like Jackie Selebi, and the politicians like Jacob Zuma and Ngoako Ramatlhodi (who were both targeted by the Scorpions for allegedly being involved in corruption) got their way to abolish that unit.

According to the South African Police Services Act, the Hawks is empowered to investigate “priority crimes”. The Act defines “priority crimes” as “organised crime, crime that requires national prevention or investigation, or crime which requires specialized skills in the prevention and investigation thereof”. It is far from clear that being in possession of a forged letter (which, as I have noted above, is not a criminal offense in our law) would constitute a priority crime as defined by section 17A of the Act.

If a crime was committed at all, it is clearly not an organised crime to possess a forged letter of resignation or even to be involved in the forging of that letter. This is also not an alleged crime that requires national prevention as it is not part of a larger network of crimes that are so embedded in our society and so endemic that ordinary members of the police cannot deal with it because of the sheer scope of the criminality across the country.

It is also rather difficult to see how one would be able to argue that the alleged crime requires specialised skills to investigate. One surely does not need specialised skills as a police unit to read a fraudulent letter and distil its meaning, to trace the origins of the letter by asking Telkom where the fax machine from which the letter was faxed was situated, to impound the relevant computer equipment, and to get experts to analyse the computer equipment to see if the letter was written on a specific computer.

Unless the ability of ordinary police officers to investigate crime is so catastrophically absent as to make them utterly useless, one would be hard pressed to claim that this was a crime requiring specialised skills to investigate. This case therefore does not seem like a “priority crime” at all.

Does this mean the Hawks illegally got involved in the investigation of this alleged crime and the arrest of Wa Africa? Maybe it did, but then maybe it did not.

Section 17D(1)(a) of the South African Police Services Act states that the Hawks can usually only investigate priority crimes. However, section 17D(1)(b) of the same Act states that the Hawks can also investigate “any other offence or category of offences referred to it from time to time by the National Commissioner”.

Ahhh, I hear you say, so the National Commissioner could have asked the Hawks to investigate this pressing matter of a journalist being in possession of a fraudulent letter. Good on our Police Commissioner for being so on top of his job and being so diligent and eager to address the terrible problem of fraudulent resignation letters that is eating away – like a cancer, I tell you –  at the very heart of our democracy!

There is only a small little problem with this kind of analysis. The problem is that the National Commissioner is Bheki Cele, the same Bheki Cele whom Wa Africa had reported on in the previous week’s issue of the Sunday Times for signing some document which might or might not have been a lease for the renting of a building – without the tender for that lease being issued as required by the law. Wa Africa had therefore co-authored a newspaper story which implicated Cele in alleged corrupt activities and a week later the Hawks arrested him. This is a rather surprising coincidence, to say the least.

Does this mean that after the Sunday Times published the story suggesting that Cele was involved in corrupt activity, Bheki Cele (with disturbing images of his predecessor, Jackie Selebi, being sent to prison for 15 years for corruption fresh in his mind) pro-actively decided to teach this journalist a lesson and ordered the Hawks to investigate and arrest Wa Africa for being in possession of a fraudulent letter (which, I repeat, is not normally a criminal offence)?

So, at least two distinct but perhaps interrelated questions arise. First, does it mean that there is more to the Sunday Times story than we know and that the Police Commissioner is a thoroughly corrupt man (following in the proud footsteps of his predecessor) and that he may have received some money or other benefits for signing off on the lease of a new Police Headquarters building? Second, did the Police Commissioner abuse the power bestowed on him by the Act by ordering the Hawks to arrest the journalist who had gotten too close to the truth on his corrupt activities?

Of course, these are questions – not assertions. Although this whole story smells very messy, we do not have enough information to know what really happened here.

Yet, a third question does, of course, also arise. If the Police Commissioner was indeed corrupt (hey, it has happened before, but I am not claiming at this stage that I believe he is) and if he is the one who can order the Hawks to investigate (and one presumes also not to investigate) certain crimes, does this mean that we will never really know about the Police Commissioner’s alleged illegal activities? Who will investigate any credible evidence of corruption against the Police Commissioner now that the Scorpions have been abolished? (The Sunday Times story is not very clear, so it is not possible to say from the available evidence whether credible evidence of corruption by the Commissioner actually exists.)

Testimony at the Glen Agliotti trial suggests that Brett Kebble and other crooks were paying the then Police Commissioner and now convicted fraudster, Jackie Selebi, (and who knows who else in the ANC?) to make sure that the Scorpions would be killed off. They did this because they feared the Scorpions. They feared the Scorpions because it sometimes actually did its work properly and was at arms length from the police, whose commissioner was a crook, could therefore be bought, and could therefore make investigations go away.

Can any reasonable person still argue that abolishing the Scorpions was not done – at least, in part – for an ulterior purpose? I would like to hear from that lone voices (the usual suspects who never fail to take a gallant stab at defending the indefensible) who will be prepared to argue that ulterior motives had nothing to do with the demise of the Scorpions. If anyone can convince me of that, he or she could probably convince any parent to send their ten year old son on a one month camping trip in the wild with a group of Catholic Priests.

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