Bheki Cele case shows the criminal justice administration is toothless in cases of serious corruption

by | Sep 16, 2022 | Chapter 9, General | 0 comments

By Paul Hoffman


14 Sep 2022

Paul Hoffman SC is a director of Accountability Now.

Both the Moloi Inquiry and the Public Protector have identified unlawful activity involving Bheki Cele and the police headquarters leases. Prosecuting Cele ticks all the boxes; it is high-profile – he is a national Cabinet minister; it is serious – what could be more serious than corruption at the apex of the SAPS?

When the 2010 Soccer World Cup was hosted by South Africa, a report appeared in the Sunday Times that suggested that leases for police headquarters in Pretoria and Durban had been “urgently” negotiated for the tournament at three times the going commercial rates applicable. The stench of corruption hung heavy in the air around the report by investigative journalists.

Accountability Now drew the attention of the Public Protector to the press report. She took action, investigated, and produced two reports herself called “Against the Rules” for the Pretoria leases and “Against the Rules Too” for the Durban leases.

By way of the appropriate remedial action she required the President, then Jacob Zuma, to convene a board of inquiry into the fitness for office of the accounting officer of SAPS, its then national commissioner, Bheki Cele. The Moloi Board of Inquiry was grudgingly convened. With prescient cunning, the President did not give the board powers of subpoena, which limited the scope of its inquiry into Cele’s doings.

The report of the Moloi inquiry is a public document. It finds Cele “dishonest and incompetent” and also recommends that “the appropriate authorities” investigate his involvement in corrupt activities.

At the time, the appropriate authority for such an investigation was the Directorate for Priority Crime Investigation, nicknamed the Hawks, a unit within the police created to take over the investigative work of the disbanded unit within the National Prosecuting Authority (NPA) known as the Scorpions or Directorate for Special Operations.

The Scorpions had been so successful in investigating crooked politicians and their fellow travellers in business that they simply had to be closed down to enable the State Capture projects of the Zuma administration to proceed unhindered. The referral of the matter to the Hawks was a test of the operational and institutional independence of the Hawks: investigating a former national commissioner of police tests the willingness, always professed, to act without fear, favour or prejudice.

Needless to say the Hawks did nothing of use to investigate Cele, a politically powerful person, and the NPA had no legislated mandate to do any investigative work of any kind. Instead, it declined to prosecute Cele.

When Cyril Ramaphosa replaced Zuma as president in 2018, he rewarded Cele (who had been a deputy minister in the last Zuma administration) with the plum job of minister of police. Why he should want to adorn his “new dawn” with so compromised an individual is an abiding mystery that confounds his professed anti-corruption stance.

As part of that stance, Ramaphosa decided to give investigative capacity back to the NPA, despite the legislation that deprived it of investigative capacity upon the disbandment of the Scorpions. This scheme was achieved by presidential proclamation creating the Investigating Directorate of the NPA under the leadership of Advocate Hermione Cronjé, a “skrik vir niks” veteran of the NPA who had quit in favour of private practice when the Scorpions were closed down by Zuma.

Cronjé was introduced to civil society organisations by the National Director of Public Prosecutions, Shamila Batohi, during a webinar held shortly after the ID was set up in terms of the Ramaphosa proclamation. On the basis that some form of independent investigative capacity is better than none, Accountability Now drew attention to the findings of the Moloi Board during the webinar and suggested that the matter was one the ID could usefully investigate.

Batohi, quick to understand why the Hawks had made no progress with the investigation recommended by the late Judge Moloi, immediately took charge of the matter. There and then, during the webinar, she issued instructions to Cronjé to investigate the allegations of malfeasance by Cele.

More than two years have passed since Cronjé was so instructed. All efforts by Accountability Now to interest her in the matter, including sending her the references to the Office of the Public Protector (OPP) reports signed off by Thuli Madonsela, the full Moloi Board report and some affidavits in litigation that touched on the topic of corruption in high places within the police came to nought.

Eventually, in September 2021, an anguished letter was dispatched to Batohi, drawing attention to the lack of progress in various high-profile matters including the investigation of Cele’s apparent corrupt activities around those police HQ leases. She promised to do better, but didn’t.

Then Cronjé was asked to resign her post as ID head and acceded to the request with effect from March 2022. Advocate Andrea Johnson was appointed in her place. Johnson has repeatedly undertaken to report progress in the Cele matter, imposing successive deadlines on herself, which she has never met.

Her unresponsiveness led to a complaint being filed with the OPP, which was copied to both Johnson and Batohi. Silence ensued. Eventually, on 12 September 2022 Johnson wrote to Accountability Now, ignoring the complaint to the OPP, in the following relevant terms:

I consulted with ID staff who had dealt with this matter prior to my appointment. The decision they had taken, and with which I agree, after having perused the matter, is that there is still substantial investigation outstanding which the previous DPCI investigator ought to finalise.

“The SCCU: Pretoria [a reference to the Serious Commercial Crimes Unit] had taken a decision wherein the late Adv Nkuna declined to prosecute the matter.

“Given the above set of facts the ID proposes that the matter be properly investigated by the DPCI and that once same is completed the matter be presented again to the SCCU: Pretoria to reconsider their initial decision in light of new evidence that might be uncovered.

“This office compiled a detailed list of investigations still to be conducted and this will be shared by tomorrow [13 September 2022] with the head of the DPCI, General Lebea, [sic, she means Dr Godfrey Lebeya] for his office to action.”

The line taken by Johnson completely ignores the fact that the matter was referred to the ID by the NDPP, Batohi, when it was raised with her during the webinar. Overriding her instructions to investigate the matter and effectively bouncing it back to the Hawks who have had a decade to investigate seems to be a step not to be taken lightly and without apparently consulting Batohi at all.

Why the ID does not do its own investigating is not explained. It has sat on the matter for about two years and now seeks to bounce it back to the hapless Hawks who have never landed any fish even half as big as Cele.

Tall order

It is also an act of overleaping optimism to imagine that the Hawks will have any appetite for the matter. The person under investigation is the head of the organisation to which they belong. Johnson is asking the Hawks to bite the hand that feeds them, a tall order that has produced no positive result for more than a decade.

While Lebeya has recently been telling the SABC that he does not have any interest in politics or factions and wishes to do his work without fear, favour or prejudice, there is no evidence that the Hawks are in fact able to mount an investigation against Cele, and it is most invidious to expect them to do so. It appears that Johnson wants the matter off her desk because a pesky little NGO is holding her to account for progress made in the matter which was referred to her predecessor.

There are many good reasons to relieve Cele of his post in Cabinet. None of the other reasons is more pressing than that he is under investigation for corruption. The corrupt status of the SAPS is well documented. SAPS management has been the locus of unbridled cadre deployment that has resulted in the militarisation and incapacitation of its personnel as a crime-fighting unit.

The attempted insurrection in July 2021 was not countered appropriately by the police for fear of “another Marikana”, indicating that SAPS has learnt nothing from the Panel of Experts report and the Sandy Africa report.

These topics have been traversed in detail before here and here and need not be repeated now.

The whole idea of creating the ID was to bypass the lack of sapiential authority, wherewithal and capacity of the Hawks in politically sensitive matters like those involving State Capture. The inflated leases are a form of “tenderpreneurism” that amounts to State Capture.

It is speculation to suggest that the recipient of the largesse generated by the manipulation of rentals may be a political party or some well-connected politicians. It is a racing certainty that the Hawks will never find out in a way that could lead to a successful prosecution.

The unilateral decision by Johnson to wash the ID’s hands of the matter suggests that the NPA will also not do the hard yards required to mount a prosecution at all.

These are worrying conclusions to reach on any conspectus of the facts. The ID itself proclaims its purpose on its website as:

“When commissions and public enquiry committees identify suspected offences, unlawful activity or criminal behaviour, the specialist IDU investigators are tasked with investigating. These investigations are often high-profile, serious or complex and require the experienced and skilled IDU investigators to build a clear and prosecutable case.”

Both the Moloi Inquiry and the Public Protector have identified unlawful activity. Prosecuting Cele ticks all the boxes; it is high-profile – he is a national Cabinet minister; it is serious – what could be more serious than corruption at the apex of the SAPS?

It is apparently complex, according to Johnson’s assessment, and the attempt at investigation by the Hawks in the past did not crack the prosecutorial nod either. So, it would appear to be the sort of case in which the “experienced and skilled IDU investigators” should be used to “build a clear and prosecutable case”.

That is precisely what Batohi instructed Cronjé to do. Cronjé did not do so before leaving the ID. Johnson has now washed her hands of the matter. The Hawks will not have any sentient observers holding their breath as they lack experienced and skilled investigators and are structurally and operationally compromised when it comes to an investigation of the minister of police himself.

The attitude of Johnson and the overall experience of the lack of progress in the case suggest that the reform of the criminal justice administration to better enable it to take on serious corruption cases is long overdue.

The Hawks are not up to the task of investigating serious corruption and the ID, as is apparent from Johnson’s own mouth, does not want to do so. DM

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