Tuesday, May 1, 2012
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2011-11-13 10:00
The Luxurious Life of Sharemax Bosses
Jaques Pauw
This is the luxury life of the two top managers of collapsed property syndication company Sharemax – while thousands of investors have lost most, if not all, of their money.
City Press has traced about R250 million of assets owned by trusts and companies of Sharemax’s former managing director, Willie Botha, and his marketing manager, Andre Brand.
Botha and Brand were, for almost a decade, at the helm of Sharemax as about 40 000 people invested an estimated R5 billion in the company’s 50 property syndicates.
The Reserve Bank ruled in May last year that Sharemax had contravened the Banks Act and had illegally collected deposits from investors.
City Press can reveal this week that one of Brand’s acquaintances, Wietz Nell, has handed incriminating documents and information to the police’s Hawks unit.
The Hawks would not say whether they have launched an investigation against Botha and Brand.
In the documents, Brand accused Botha in a memorandum of illegally pocketing at least R9?million of money intended for investors.
Brand also alleged that Botha had, over a period of four years, pocketed R53 million in “commission” from a Sharemax front company. Brand demanded a R24.5 million share from Botha.
Botha this week ignored multiple attempts to get comment.
Brand said this week that Nell had obtained the documents dishonestly, but he did not deny their veracity.
Brand said that he had in the meantime cleared his complaint with Botha and that he withdrew any allegations against him. He said he now believed the money was paid legally to Botha.
Tomorrow, a group of Sharemax investors plan to bring an urgent court application to declare Sharemax bankrupt, and to freeze the assets of Botha and Brand.
Among the assets that the investors want frozen is Botha’s luxury yacht, which he keeps in the Egyptian port of Hurghada in the Red Sea.
The Italian-designed Scuba Scene is apparently worth between R120 million and R150 million, and is wholly owned by the Willem Botha Family Trust.
The boat has its own website and is described as “43 metres of classic nautical beauty and luxury”.
It says the Scuba Scene is a “true marvel of design, technology and style to provide all its passengers with an aesthetically pleasing masterpiece”.
The investors also want to ask the high court to prevent Brand from selling his 3 000 hectare game farm near Thabazimbi in Limpopo.
The game farm, Thaba Motswere, has been valued at R79 million, and has giraffe, eland, kudu, gemsbok, cheetah and leopard.
The farm’s lodge alone cost Brand an estimated R20 million to build and resembles a five-star hotel with all possible amenities.
Brand is desperate to sell the farm and even considered a price of R21.5 million last month.
Botha has an equally luxurious game farm in Marken in Limpopo that is thought to be worth even more as it has the Big Five – elephant, rhino, buffalo, lion and cheetah.
Botha lives in a double-storey villa in the exclusive Silver Lakes Estate in Pretoria. Brand recently signed a contract to sell his mansion in Mooikloof in Pretoria for R15 million.
Botha was in August “relieved” of his duties and resigned as director. Brand has also since left the company.
In September, the Reserve Bank put Sharemax under statutory management, ordering Sharemax to repay its investors, but there was no money left to do so.
The documents that City Press obtained shows that after Botha and Brand had left Sharemax, they were still paid R15 million commission.
The company that is managing Sharemax on behalf of the Reserve Bank, Frontier Asset Management and Investments, did not respond to queries this week.
A forensic auditor, André Prakke, studied the documents obtained by City Press and concluded that there was evidence of money laundering, theft and fraud.
Prakke says that 80% of the money that was invested in Sharemax is gone.
Prakke has investigated Sharemax for many years and has submitted statements about the company to the high court.
He says that the commission that Brand refers to in his memos to Botha has never been revealed in any of Sharemax’s property portfolios.
- City Press
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Mdluli prosecutor shot at
2012-04-30 18:33
Related Links
Mdluli prosecutor suspended
Prosecutor hits back at NPA
Mdluli’s startling comeback
NPA denies Mdluli, Breytenbach link
Senior officers ‘fear Mdluli’s return’
Adriaan Basson
Suspended anti-corruption prosecutor Glynnis Breytenbach was shot at three weeks ago while driving home.
Breytenbach, who prosecuted crime intelligence boss Richard Mdluli until the case was withdrawn by her superiors in December, was suspended by the National Prosecuting Authority (NPA) this morning.
She told City Press she is convinced the shooting was related to her work.
"I have been followed for some time. It happened late in the evening of April 11 on the N14 while I was driving home. Two shots were fired, but both missed."
Breytenbach said she was still being followed. She reported the shooting to the Hawks.
Last Wednesday morning two BMW motorcycles tried to force her off the road while she was driving home from the gym.
"A metro police car came by and they backed off," she said.
Breytenbach is the head of the Specialised Commercial Crimes Unit in Pretoria. Apart from the Mdluli matter, she was also working on the arms deal investigation and on a mining rights case involving Kumba and politically connected Imperial Crown Trading (ICT).
Her lawyer Gerhard Wagenaar confirmed her suspension by acting NPA head Advocate Nomgcobo Jiba today, saying the official reason given by the NPA was that his client allegedly abused her powers in the Kumba fraud case.
Breytenbach was the prosecutor in a case concerning the awarding of mining rights at Sishen to ICT. Kumba subsequently laid a charge of fraud against ICT, and Breytenbach was appointed as prosecutor.
ICT's directors and legal representatives subsequently complained to the NPA that Breytenbach was seen as being too close to Kumba and its legal representatives.
Breytenbach denies any wrongdoing.
Her supporters in and outside the NPA believe the Kumba complaint is a red herring and that her persistence to prosecute Mdluli led to her suspension by her bosses in the NPA.
NPA spokesperson Bulelwa Makeke confirmed Breytenbach's suspension. "She has been provided with reasons for her suspension after she was given more than enough time to respond.
"The next step will be an internal disciplinary hearing where all allegations will be addressed substantively."
The NPA denied that Breytenbach's suspension was linked to her insistence that the Mdluli case continued.
Last week, Breytenbach provided Jiba with a memorandum, outlining her reasons why the Mdluli case should never have been withdrawn.
- City Press
ACDP outraged at intimidation/suspension of Glynnis Breytenbach
ACDP outraged at intimidation/suspension of Glynnis Breytenbach
Steve Swart
01 May 2012
Steve Swart says NPA prosecutor has reported being followed, shot at and almost driven off road
ACDP EXPRESSES ‘'OUTRAGE'' AT INTIMIDATION, SUSPENSION OF TOP NPA PROSECUTOR
ACDP MP long-standing member of the Justice and Constitutional Development Portfolio Committee, Steve Swart , has expressed outrage at the suspension and attempts to intimidate top NPA prosecutor, Glynnis Breytenbach (see Beeld report):
"The ACDP is outraged by the revelation by top National Prosecution Authority anti-corruption prosecutor, Adv Glynnis Breyetnbach, of a sustained campaign of intimidation against her, including being shot at, almost being driven off the road, still being followed, and now being suspended.
It is very clear that this campaign of intimidation is linked to Adv. Breytenbach's involvement in high-profile cases, including her resistance to the dropping of charges against crime intelligence boss, Richard Mdluli and the ICT and Malema matters.
Prosecutors must be able to perform their tasks without fear, favour or prejudice. In this case, a very senior prosecutor is systematically being prevented from carrying out her duties. Surely, on this Workers Day, Adv Breytenbach is entitled to the full protection of the law, including protection from intimidation and personal harm, to do her work.
The ACDP has previously expressed concerns about the safety of prosecutors involved in high-profile cases and was given the assurance by the NPA that sufficient protection mechanisms were in place to provide personal protection, where necessary. This case cries out for such urgent protection. The ACDP calls on the NPA to urgently provide bodyguards for Adv. Breyetenbach, considering that she states she is still being followed.
While the acting National Director of Public Prosecutions, Adv. Nomgcobo Jiba, has denied that there was any link between Breytenbach's suspension and the Mdluli enquiry, or that there had been any instructions or political pressure to drop the charges against Mdluli, this intimidation campaign suggests otherwise.
How is it possible that such a senior prosecutor is suspended following a mere letter complaining about her conduct in the ICT matter, while Mdluli, who is alleged to have committed murder and allegedly abused a R300 million slush fund remains in office?
Something is seriously wrong, and we as Parliamentarians will pursue this matter urgently and demand a full explanation as to why Breytenbach was suspended and has not been provided with body guards."
Statement issued by Steve Swart MP, African Christian Democratic Party, May 1 2012
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The targeting of Adv Glynnis Breytenbach
Dr Loammi Wolf
08 February 2012
Loammi Wolf says NPA is killing awkward prosecutions by removing competent prosecutors
Threatened suspension of top prosecutor would be arbitrary and unconstitutional
The pending suspension of adv Glynnis Breytenbach, who heads the NPA's Pretoria office of the specialised Commercial Crimes Unit and who has made her mark as a graft buster, caused quite a stir. From a constitutional point of view, it will be an infringement upon the principle of prosecuting independence as laid down in section 179(4) of the Constitution should she be suspended from office.
The problem is of a bigger dimension though than this incident. Although state prosecutions should be based on the rule of law with criminal laws applying in general to everybody, political office bearers seem to be immune to prosecution with the exception of a few sacrificial pawns like Yengeni. If one looks at the case of Malema, for example, who is alleged to be involved in corruption and having evaded taxes to the tune of millions and Carl Niehaus, who committed fraud in a number of instances, who were never prosecuted, it is clear that there is a two-class prosecution policy: one for the well-connected ruling class and another for ordinary people.
The main problem is that the Westminster system's separation of powers has been perpetuated although South Africa switched to the constitutional state model in 1994.
During the Codesa deliberations one of the main issues was that people wanted a clear break with the weaknesses of the Westminster system. They no longer wanted a system of parliamentary sovereignty where any legislation - irrespective of whether the laws were fair and just - should be enforced. They no longer wanted a system where criminal prosecutions could be manipulated by the executive. In short, they wanted a written constitution with a bill of rights, containing a limitation clause clearly spelling out how state power should be exercised, and making it possible to declare legislation that is not in conformity with constitutional norms, unconstitutional. This is a system of rule of law instead of rule by law.
It is a well-known fact that excesses of state power, and an abuse of executive power in particular, typically crop up in systems where prosecutors can be controlled by the executive. This is one of the principal weaknesses of the Westminster system. The most extreme forms of abusing power in the sphere of criminal justice are found in authoritarian systems - be that military dictatorships or systems like the socialist regimes of the former East Bloc. A typical feature of these regimes was that judges and prosecutors were executive appointees and that such positions were only open to trusted cadres.
Reports on how the criminal justice system of East Germany functioned leave no doubt about its crudeness and negation of basic human rights. "Political offences" were prosecuted by the Stasi (secret police) with harsh justice being meted out for any form of dissidence. Even a cursory reading of the three decades of articles by Tiziano Terzani on the communist regimes in South East Asia like China, Vietnam and Cambodia, makes clear how prone these systems were to corruption of cadres. Despite the lofty ideals of communism the abuse of power in criminal justice, directly or indirectly controlled by the executive, was endemic. This should make one think twice before these systems are idealised in the revisionist manner, which is currently so en vogue.
Differences between Westminster and constitutional state criminal justice
The constitutional state model foresees three equally strong branches of state power: the legislature, the executive and the administration of justice through prosecution and adjudication (judiciary; prosecutors). Unlike the Westminster system, where prosecutors were historically a split-off from the police as "law-enforcers" who also prosecuted criminal offences, the prosecutors were split-off from the judiciary in Continental European constitutional states to separate the investigation of criminal offences from adjudication.
In the Westminster system, prosecutors are thus part of the executive branch, and not the third branch of state power. As a result, one cannot clearly define criminal prosecutions as part of the administration of justice. One also cannot clearly delineate criminal investigations and prosecutions (criminal law) from executive state administration (administrative law) because the boundaries of the applicable law are completely blurred.
The current Constitution, however, makes clear that the state prosecutors are the second organ next to the judiciary in the third branch of state power. How they should exercise these powers are regulated by Chapter 8 of the Constitution in conjunction with sections 34 (access to the courts) and 35 (rights to fair treatment in criminal investigations, trials and the execution of sentences) of the bill of rights. This must be clearly distinguished from executive powers and the right to just administrative action (section 33 of the bill of rights) that could be taken by such state organs. In the field of public law, the former is regulated by criminal law and the latter by administrative law.
In other words, prosecuting policy which could be made by the national director of the prosecuting authority in terms of section 179(5) of the Constitution should not be confused with executive policy on how to implement powers conferred upon them in terms of legislation.
The minister of justice is therefore not the boss of the prosecutors - even if Mr Zuma seems to espouse this view -- but runs a department of the executive branch, which is obliged to facilitate a liaising role insofar as executive state organs (the police, tax authorities, customs and excise, etc) have to assist in criminal investigations.
One must therefore clearly distinguish the powers of the police force to secure public safety and order in terms of section 205(3) of the Constitution from their assistance to prosecutors to investigate criminal offences. Their powers as part of the executive branch (ie to secure public safety and order) are subject to the norms of just administrative action as laid down by section 33 of the bill of rights. This prohibits police officers, for example, to use excessive force when they exercise their administrative powers.
Criminal investigations, however, are headed by the prosecuting authority as an organ of the third branch of state power. The power to prosecute has explicitly been conferred upon them by section 179(2) of the Constitution and depends on criminal law. Unlike Westminster systems where police officers may also prosecute, this is precluded in constitutional states. Section 13(5) of the SAPS Act of 1995, which confers prosecuting powers upon members of the police force, is therefore obviously unconstitutional.
Prosecutors are bound by the principle of legality and have to invoke criminal law "without fear, favour or prejudice" (section 179(4) of the Constitution). It is therefore not the national director of the NPA who decides whether a specific act is a criminal offence based on some value judgements but the law.
Prosecutors are obliged to prosecute all matters with a reasonable chance on success (the pre-trial prima facie standard) when the elements of a specific crime can be proved. In S v Basson the Constitutional Court held that it is the constitutional obligation of the prosecuting authority "to prosecute those offences that threaten or infringe the rights of citizens".
In Nkdimeng v National Director of Public Prosecutions, the Gauteng High Court equally stressed the right of victims and held that it would be unconstitutional if the prosecuting authority would refuse to prosecute "where there is a strong case and adequate evidence to do so".
If the prosecutors should be allowed to drop charges in a prima facie case, this would boil down to a de facto acquittal without a trial. This, however, would constitute an usurpation of judicial power which is an unconstitutional practice in terms of section 41(1)(f) of the Constitution.
If prosecutors would refuse to prosecute a person in a prima facie case, a victim could therefore invoke section 34 of the bill of rights to get access to the courts and thus force the prosecutors to institute criminal proceedings in a specific matter. Along this route one can say that the state organ, who exercises a kind of oversight over the prosecutors to ensure that they do not drop criminal charges arbitrarily, is the judiciary.
It is laudable that Dene Smuts of the Democratic Alliance in her defence of adv Breytenbach, has told the top officials of the NPA that they should remember that the NPA is accountable to Parliament. Smuts relied on section 35 of the NPA Act of 1998. This provision, however, is just as unconstitutional as section 13(5) of the SAPS Act, which conferred prosecuting powers upon the police. In terms of section 55(2) of the Constitution, Parliament has the power to oversee state organs exercising executive power. The administration of justice (ie prosecution and adjudication) is not an executive power though.
Illegal orders to drop charges or purposely aborting cases
What is at issue, is that adv Breytenbach has been taken off a fraud case by the former head of the NPA, Menzi Simelane just before he lost office, involving Imperial Crown Trading in the Kumba Iron Ore case r - alleged due to pressure by well-connected persons.
She was apparently also forced not to pursue a fraud and murder case involving the crime intelligence boss Richard Mduli by the new director of the Commercial Crimes Unit, Lawrence Mrwebi. Apparently Mrwebi is also due to give evidence in another matter where she is the prosecutor. He authorised a transaction of his colleague Ledwaba during his time as head of the Scorpions in Natal, in which the latter siphoned off over R500.000 from a confidential fund of the Scorpions.
In its letter to adv Breytenbach, the NPA cited only an alleged abuse of powers in the criminal investigation of the multibillion-rand Sishen iron ore mining deal. A portion of the prospecting rights to the mine was initially awarded to Imperial Crown Trading, whose beneficiaries include President Jacob Zuma's son, Duduzane, Deputy President Kgalema Motlanthe's partner, Gugu Mtshali, and Jagdish Parekh, who heads the Gupta family's business empire. After a challenge by Kumba Iron Ore, the award to Imperial was invalidated by the Pretoria High Court last year.
It has been alleged that such tactics are employed when the top structure of the NPA want a court case to fail. This also happened in the case of druglord Glenn Agliotti, when Gerrie Nel was taken off the case. Simelane also instructed Gauteng's acting deputy director of public prosecutions, Gladstone Maema, to replace Gerrie Nel, as prosecutor in Mphego's trial. Nel charged Mphego, a former head of the SAPS's crime intelligence unit, for defeating the ends of justice in the Selebi trial. Shortly afterwards the case was struck off the role. Mphego was apparently also involved in passing the disreputable spy tapes on to Zuma's lawyer, Michael Hulley, which then served as a reason to drop charges against Zuma.
Breytenbach's lawyer, Gerhard Wagenaar, said that his client had denied abusing her powers and had written to the NPA to request more details about the alleged abuse.
The question is therefore whether directors of the NPA may give orders to prosecutors to drop charges in a prima facie case or whether they may cause the deliberate abortion of a prosecution by taking successful prosecutors, who investigated a matter and know all its details, off a case?
The directors of the NPA are bound by the principle of legality and must invoke the law in an unbiased and scrupulous manner. The rule of law is cemented by section 1(c) in conjunction with section 179(4) of the Constitution. With such behaviour they would forsake their constitutional duties. They themselves could be charged for improper interference with criminal prosecutions (section 32(1)(b) read with section 41(1) of the NPA Act). Originally such interference was sanctioned with up to ten years imprisonment, but at the behest of the executive the legislature watered this down to a maximum of two years' imprisonment.
Such improper orders would also be a ground to remove the national director from office if he would be involved in such arbitrary dropping of charges or wilfully abort cases by taking prosecutors, who investigated a specific off cases with the sole purpose that the case should fail (section 12(6)(a)(i), (ii) and (iv) of the NPA Act). The point is just that this is not likely to happen if the President who is supposed to do that is himself a beneficiary of such improper action. It is doubtful whether this provision in its current form would survive the scrutiny of its constitutionality, because it transgresses the separation of powers.
The Constitution demands impartiality from judges and prosecutors and make them subject only to the Constitution and the law. There are obviously differences between judicial independence compared to prosecuting independence though.
Judicial independence means that there is no internal hierarchic structure in the judiciary where a judge president or chief justice may give orders to other judges how to adjudicate in a specific matter. The different tiers of courts exercise judicial power in their respective jurisdictions and their powers are regulated by the Constitution, the law and the system of precedent (stare decisis), where lower courts are bound by legal rules that crystallised in judgments of higher courts.
Prosecuting independence primarily denotes independence from political influence of the justice minister and the executive branch. In S v Basson a unanimous bench of the Constitutional Court stressed the independence of the prosecuting authority as state organ to institute criminal proceedings under section 179 of the Constitution on behalf of the state. Although the internal organisation of the prosecuting authority is hierarchically structured to enable an efficient administration of criminal prosecutions, all prosecuting decisions are still subject to the principle of legality. It would therefore be an unconstitutional exercise of power if a director of public prosecutions would force prosecutors to drop charges in prima facie cases.
In terms of section 32(2) of the NPA Act all prosecutors have to take an oath that they will enforce criminal law impartially and will uphold and protect the Constitution and rights entrenched by the bill of rights. If adv Breytenbach's superiors would therefore force her to break her oath, this not only has consequences as an unfair labour-law practice because it forces her not to perform her duties properly, but can be contested at a constitutional level as well. She would be able to take the matter to the Constitutional Court on the basis of a dispute concerning the powers and functions of a state organ (section 167(4)(a) of the Constitution.)
The appeal of the Democratic Alliance's case about the legality of dropping of charges against Zuma at the time when he was president of the ANC shortly before the 2009 elections and which made the way free for him to run as President, has been scheduled for a hearing in the Supreme Court of Appeal on 15 February 2012. This will be a litmus test for impartial state prosecutions and upholding the rule of law.
* Loammi Wolf specialises in public law and has a special interest in constitutionalism and state organisation law. She obtained an LLM at the University of Virginia as well as a doctorate in constitutional law at Unisa. Currently she runs the initiative Democracy for Peace. She published extensive research on the topic of prosecuting independence.
Steve Swart
01 May 2012
Steve Swart says NPA prosecutor has reported being followed, shot at and almost driven off road
ACDP EXPRESSES ‘'OUTRAGE'' AT INTIMIDATION, SUSPENSION OF TOP NPA PROSECUTOR
ACDP MP long-standing member of the Justice and Constitutional Development Portfolio Committee, Steve Swart , has expressed outrage at the suspension and attempts to intimidate top NPA prosecutor, Glynnis Breytenbach (see Beeld report):
"The ACDP is outraged by the revelation by top National Prosecution Authority anti-corruption prosecutor, Adv Glynnis Breyetnbach, of a sustained campaign of intimidation against her, including being shot at, almost being driven off the road, still being followed, and now being suspended.
It is very clear that this campaign of intimidation is linked to Adv. Breytenbach's involvement in high-profile cases, including her resistance to the dropping of charges against crime intelligence boss, Richard Mdluli and the ICT and Malema matters.
Prosecutors must be able to perform their tasks without fear, favour or prejudice. In this case, a very senior prosecutor is systematically being prevented from carrying out her duties. Surely, on this Workers Day, Adv Breytenbach is entitled to the full protection of the law, including protection from intimidation and personal harm, to do her work.
The ACDP has previously expressed concerns about the safety of prosecutors involved in high-profile cases and was given the assurance by the NPA that sufficient protection mechanisms were in place to provide personal protection, where necessary. This case cries out for such urgent protection. The ACDP calls on the NPA to urgently provide bodyguards for Adv. Breyetenbach, considering that she states she is still being followed.
While the acting National Director of Public Prosecutions, Adv. Nomgcobo Jiba, has denied that there was any link between Breytenbach's suspension and the Mdluli enquiry, or that there had been any instructions or political pressure to drop the charges against Mdluli, this intimidation campaign suggests otherwise.
How is it possible that such a senior prosecutor is suspended following a mere letter complaining about her conduct in the ICT matter, while Mdluli, who is alleged to have committed murder and allegedly abused a R300 million slush fund remains in office?
Something is seriously wrong, and we as Parliamentarians will pursue this matter urgently and demand a full explanation as to why Breytenbach was suspended and has not been provided with body guards."
Statement issued by Steve Swart MP, African Christian Democratic Party, May 1 2012
---------------------------------------------------------------------------
--------------------------------------------------------------------------------
The targeting of Adv Glynnis Breytenbach
Dr Loammi Wolf
08 February 2012
Loammi Wolf says NPA is killing awkward prosecutions by removing competent prosecutors
Threatened suspension of top prosecutor would be arbitrary and unconstitutional
The pending suspension of adv Glynnis Breytenbach, who heads the NPA's Pretoria office of the specialised Commercial Crimes Unit and who has made her mark as a graft buster, caused quite a stir. From a constitutional point of view, it will be an infringement upon the principle of prosecuting independence as laid down in section 179(4) of the Constitution should she be suspended from office.
The problem is of a bigger dimension though than this incident. Although state prosecutions should be based on the rule of law with criminal laws applying in general to everybody, political office bearers seem to be immune to prosecution with the exception of a few sacrificial pawns like Yengeni. If one looks at the case of Malema, for example, who is alleged to be involved in corruption and having evaded taxes to the tune of millions and Carl Niehaus, who committed fraud in a number of instances, who were never prosecuted, it is clear that there is a two-class prosecution policy: one for the well-connected ruling class and another for ordinary people.
The main problem is that the Westminster system's separation of powers has been perpetuated although South Africa switched to the constitutional state model in 1994.
During the Codesa deliberations one of the main issues was that people wanted a clear break with the weaknesses of the Westminster system. They no longer wanted a system of parliamentary sovereignty where any legislation - irrespective of whether the laws were fair and just - should be enforced. They no longer wanted a system where criminal prosecutions could be manipulated by the executive. In short, they wanted a written constitution with a bill of rights, containing a limitation clause clearly spelling out how state power should be exercised, and making it possible to declare legislation that is not in conformity with constitutional norms, unconstitutional. This is a system of rule of law instead of rule by law.
It is a well-known fact that excesses of state power, and an abuse of executive power in particular, typically crop up in systems where prosecutors can be controlled by the executive. This is one of the principal weaknesses of the Westminster system. The most extreme forms of abusing power in the sphere of criminal justice are found in authoritarian systems - be that military dictatorships or systems like the socialist regimes of the former East Bloc. A typical feature of these regimes was that judges and prosecutors were executive appointees and that such positions were only open to trusted cadres.
Reports on how the criminal justice system of East Germany functioned leave no doubt about its crudeness and negation of basic human rights. "Political offences" were prosecuted by the Stasi (secret police) with harsh justice being meted out for any form of dissidence. Even a cursory reading of the three decades of articles by Tiziano Terzani on the communist regimes in South East Asia like China, Vietnam and Cambodia, makes clear how prone these systems were to corruption of cadres. Despite the lofty ideals of communism the abuse of power in criminal justice, directly or indirectly controlled by the executive, was endemic. This should make one think twice before these systems are idealised in the revisionist manner, which is currently so en vogue.
Differences between Westminster and constitutional state criminal justice
The constitutional state model foresees three equally strong branches of state power: the legislature, the executive and the administration of justice through prosecution and adjudication (judiciary; prosecutors). Unlike the Westminster system, where prosecutors were historically a split-off from the police as "law-enforcers" who also prosecuted criminal offences, the prosecutors were split-off from the judiciary in Continental European constitutional states to separate the investigation of criminal offences from adjudication.
In the Westminster system, prosecutors are thus part of the executive branch, and not the third branch of state power. As a result, one cannot clearly define criminal prosecutions as part of the administration of justice. One also cannot clearly delineate criminal investigations and prosecutions (criminal law) from executive state administration (administrative law) because the boundaries of the applicable law are completely blurred.
The current Constitution, however, makes clear that the state prosecutors are the second organ next to the judiciary in the third branch of state power. How they should exercise these powers are regulated by Chapter 8 of the Constitution in conjunction with sections 34 (access to the courts) and 35 (rights to fair treatment in criminal investigations, trials and the execution of sentences) of the bill of rights. This must be clearly distinguished from executive powers and the right to just administrative action (section 33 of the bill of rights) that could be taken by such state organs. In the field of public law, the former is regulated by criminal law and the latter by administrative law.
In other words, prosecuting policy which could be made by the national director of the prosecuting authority in terms of section 179(5) of the Constitution should not be confused with executive policy on how to implement powers conferred upon them in terms of legislation.
The minister of justice is therefore not the boss of the prosecutors - even if Mr Zuma seems to espouse this view -- but runs a department of the executive branch, which is obliged to facilitate a liaising role insofar as executive state organs (the police, tax authorities, customs and excise, etc) have to assist in criminal investigations.
One must therefore clearly distinguish the powers of the police force to secure public safety and order in terms of section 205(3) of the Constitution from their assistance to prosecutors to investigate criminal offences. Their powers as part of the executive branch (ie to secure public safety and order) are subject to the norms of just administrative action as laid down by section 33 of the bill of rights. This prohibits police officers, for example, to use excessive force when they exercise their administrative powers.
Criminal investigations, however, are headed by the prosecuting authority as an organ of the third branch of state power. The power to prosecute has explicitly been conferred upon them by section 179(2) of the Constitution and depends on criminal law. Unlike Westminster systems where police officers may also prosecute, this is precluded in constitutional states. Section 13(5) of the SAPS Act of 1995, which confers prosecuting powers upon members of the police force, is therefore obviously unconstitutional.
Prosecutors are bound by the principle of legality and have to invoke criminal law "without fear, favour or prejudice" (section 179(4) of the Constitution). It is therefore not the national director of the NPA who decides whether a specific act is a criminal offence based on some value judgements but the law.
Prosecutors are obliged to prosecute all matters with a reasonable chance on success (the pre-trial prima facie standard) when the elements of a specific crime can be proved. In S v Basson the Constitutional Court held that it is the constitutional obligation of the prosecuting authority "to prosecute those offences that threaten or infringe the rights of citizens".
In Nkdimeng v National Director of Public Prosecutions, the Gauteng High Court equally stressed the right of victims and held that it would be unconstitutional if the prosecuting authority would refuse to prosecute "where there is a strong case and adequate evidence to do so".
If the prosecutors should be allowed to drop charges in a prima facie case, this would boil down to a de facto acquittal without a trial. This, however, would constitute an usurpation of judicial power which is an unconstitutional practice in terms of section 41(1)(f) of the Constitution.
If prosecutors would refuse to prosecute a person in a prima facie case, a victim could therefore invoke section 34 of the bill of rights to get access to the courts and thus force the prosecutors to institute criminal proceedings in a specific matter. Along this route one can say that the state organ, who exercises a kind of oversight over the prosecutors to ensure that they do not drop criminal charges arbitrarily, is the judiciary.
It is laudable that Dene Smuts of the Democratic Alliance in her defence of adv Breytenbach, has told the top officials of the NPA that they should remember that the NPA is accountable to Parliament. Smuts relied on section 35 of the NPA Act of 1998. This provision, however, is just as unconstitutional as section 13(5) of the SAPS Act, which conferred prosecuting powers upon the police. In terms of section 55(2) of the Constitution, Parliament has the power to oversee state organs exercising executive power. The administration of justice (ie prosecution and adjudication) is not an executive power though.
Illegal orders to drop charges or purposely aborting cases
What is at issue, is that adv Breytenbach has been taken off a fraud case by the former head of the NPA, Menzi Simelane just before he lost office, involving Imperial Crown Trading in the Kumba Iron Ore case r - alleged due to pressure by well-connected persons.
She was apparently also forced not to pursue a fraud and murder case involving the crime intelligence boss Richard Mduli by the new director of the Commercial Crimes Unit, Lawrence Mrwebi. Apparently Mrwebi is also due to give evidence in another matter where she is the prosecutor. He authorised a transaction of his colleague Ledwaba during his time as head of the Scorpions in Natal, in which the latter siphoned off over R500.000 from a confidential fund of the Scorpions.
In its letter to adv Breytenbach, the NPA cited only an alleged abuse of powers in the criminal investigation of the multibillion-rand Sishen iron ore mining deal. A portion of the prospecting rights to the mine was initially awarded to Imperial Crown Trading, whose beneficiaries include President Jacob Zuma's son, Duduzane, Deputy President Kgalema Motlanthe's partner, Gugu Mtshali, and Jagdish Parekh, who heads the Gupta family's business empire. After a challenge by Kumba Iron Ore, the award to Imperial was invalidated by the Pretoria High Court last year.
It has been alleged that such tactics are employed when the top structure of the NPA want a court case to fail. This also happened in the case of druglord Glenn Agliotti, when Gerrie Nel was taken off the case. Simelane also instructed Gauteng's acting deputy director of public prosecutions, Gladstone Maema, to replace Gerrie Nel, as prosecutor in Mphego's trial. Nel charged Mphego, a former head of the SAPS's crime intelligence unit, for defeating the ends of justice in the Selebi trial. Shortly afterwards the case was struck off the role. Mphego was apparently also involved in passing the disreputable spy tapes on to Zuma's lawyer, Michael Hulley, which then served as a reason to drop charges against Zuma.
Breytenbach's lawyer, Gerhard Wagenaar, said that his client had denied abusing her powers and had written to the NPA to request more details about the alleged abuse.
The question is therefore whether directors of the NPA may give orders to prosecutors to drop charges in a prima facie case or whether they may cause the deliberate abortion of a prosecution by taking successful prosecutors, who investigated a matter and know all its details, off a case?
The directors of the NPA are bound by the principle of legality and must invoke the law in an unbiased and scrupulous manner. The rule of law is cemented by section 1(c) in conjunction with section 179(4) of the Constitution. With such behaviour they would forsake their constitutional duties. They themselves could be charged for improper interference with criminal prosecutions (section 32(1)(b) read with section 41(1) of the NPA Act). Originally such interference was sanctioned with up to ten years imprisonment, but at the behest of the executive the legislature watered this down to a maximum of two years' imprisonment.
Such improper orders would also be a ground to remove the national director from office if he would be involved in such arbitrary dropping of charges or wilfully abort cases by taking prosecutors, who investigated a specific off cases with the sole purpose that the case should fail (section 12(6)(a)(i), (ii) and (iv) of the NPA Act). The point is just that this is not likely to happen if the President who is supposed to do that is himself a beneficiary of such improper action. It is doubtful whether this provision in its current form would survive the scrutiny of its constitutionality, because it transgresses the separation of powers.
The Constitution demands impartiality from judges and prosecutors and make them subject only to the Constitution and the law. There are obviously differences between judicial independence compared to prosecuting independence though.
Judicial independence means that there is no internal hierarchic structure in the judiciary where a judge president or chief justice may give orders to other judges how to adjudicate in a specific matter. The different tiers of courts exercise judicial power in their respective jurisdictions and their powers are regulated by the Constitution, the law and the system of precedent (stare decisis), where lower courts are bound by legal rules that crystallised in judgments of higher courts.
Prosecuting independence primarily denotes independence from political influence of the justice minister and the executive branch. In S v Basson a unanimous bench of the Constitutional Court stressed the independence of the prosecuting authority as state organ to institute criminal proceedings under section 179 of the Constitution on behalf of the state. Although the internal organisation of the prosecuting authority is hierarchically structured to enable an efficient administration of criminal prosecutions, all prosecuting decisions are still subject to the principle of legality. It would therefore be an unconstitutional exercise of power if a director of public prosecutions would force prosecutors to drop charges in prima facie cases.
In terms of section 32(2) of the NPA Act all prosecutors have to take an oath that they will enforce criminal law impartially and will uphold and protect the Constitution and rights entrenched by the bill of rights. If adv Breytenbach's superiors would therefore force her to break her oath, this not only has consequences as an unfair labour-law practice because it forces her not to perform her duties properly, but can be contested at a constitutional level as well. She would be able to take the matter to the Constitutional Court on the basis of a dispute concerning the powers and functions of a state organ (section 167(4)(a) of the Constitution.)
The appeal of the Democratic Alliance's case about the legality of dropping of charges against Zuma at the time when he was president of the ANC shortly before the 2009 elections and which made the way free for him to run as President, has been scheduled for a hearing in the Supreme Court of Appeal on 15 February 2012. This will be a litmus test for impartial state prosecutions and upholding the rule of law.
* Loammi Wolf specialises in public law and has a special interest in constitutionalism and state organisation law. She obtained an LLM at the University of Virginia as well as a doctorate in constitutional law at Unisa. Currently she runs the initiative Democracy for Peace. She published extensive research on the topic of prosecuting independence.
Directors blow investors' money
Directors blow investors' money
By: Adri van Zyl
2012-04-29
Johannesburg - Over the past week a horrific tale has unfolded of how around R1.15bn belonging to investors who thought their money was safe in a money market has apparently been plundered for personal gain by the directors of various investment companies.
Some of the money (almost R1m) was allegedly even used by the directors to accompany the Springboks on a rugby tour and covered up in the books as “management costs”.
The curators of Corporate Money Managers (CMM), the Cash Managed Fund (CMF) and ten associated companies are on a fierce offensive to try and recover money for the investors in the CMF.
Last week the curators served a summons for R1.1bn on Absa Group [JSE:ASA] which, as CFM trustee, said the curators, was supposed to have picked up the malpractices.
But a summons for the same amount was also issued on 21 individuals, 18 of whom were allegedly part of the "reckless, negligent or deceitful management" of 26 companies through which investors' money in the CMF was apparently siphoned.
The curators' court documents contend that the individuals were all involved in managing CMM and allegedly enriched themselves through misappropriation of the money invested in CMF.
CMM raised money from investors and invested it in the CMF, which was supposed to be a safe money market investment.
The joint and separate actions of the directors of the bank, according to the curators, had led to investors in the CMF suffering a R115bn loss.
It's this amount that the curators are now attempting to recover from individuals who, according to one of them, had been involved in nothing other than fraud which they attempted to cover up.
The money in the CMF was not, as had been intended, invested in safe money market instruments, but was allegedly used for bridging finance for dubious property transactions, loans to companies in trouble and for property developments.
And when things started to go wrong, the losses were allegedly concealed by the issue of worthless promissory notes between the various related companies. These promissory notes, issued between the related companies, were also lodged with Absa as proof that the CMF, of which Absa was the trustee, would be able to meet its obligations to investors.
The promissory notes were however worthless because the companies had no assets and, according to the curators, the issuers and signatories were aware of the fact.
In the process of apparently concealing the insolvency of the related companies, the promissory notes were repeatedly rolled over by cancelling the originals and replacing them with new ones.
The main protagonists in the alleged plundering of the CMF include the directors and management of the CMM and Allegro Holdings, a former subsidiary of the listed company African Dawn.
When CMM was put under curatorship in 2009, Johan Bakkes was the chief executive and head of investments at CMM and a director of seven of the related companies and three trusts, with himself and his family as the beneficiaries.
Frik Vermaak, who was appointed chief executive of Athletics South Africa last December, was the chief executive of Allegro Holdings and a director of Allegro Group Investments, Allegro Bridging, Allegro Property Services and five of the related companies that were allegedly involved in the misappropriation of the money invested in the CMF.
CMM and Allegro Holdings were joint shareholders in the company Miro Holdings, which in turn was the holding company of Miro Capital.
Miro Capital, according to the CMM curators, was one of four companies established with the special purpose of issuing promissory notes in favour of the CMM and the CMF so as to get money from the CMF to finance property deals for four other related companies.
The summons served on the individuals notes that the indebtedness of the respective related companies to one another - and ultimately the CMF - amounts to R1.6bn and that 16 of the individuals involved in managing the companies are jointly and severally responsible for repayment of the R105.6m to CMM or the CMF.
V During the past week Absa announced that it intended defending itself against the steps being taken by the curators.
An amount of R989 000 that the CMM curators are demanding from former board members of CMM and related companies, was apparently spent on a rugby tour to Europe accompanying the Springboks in November 2008.
Two directors of CMM and six board members of Allegro Bridging, including Bakkes and Vermaak, were on the tour.
An amount of R1.1m was apparently withdrawn from CMM’s bank account for travelling expenses.
The curators further argue that investors' money was used for the rugby tour and, by means of creative accounting, was indicated as amortised debt in the CMM and Allegro books.
In the two companies’ books the money spent on the rugby tour was reflected as a loan to a related company, Miro Capital (in which CMM and Allegro were equal shareholders). The payment of R17 000 to each of the board members on the tour was also noted in this loan account.
Miro Capital “repaid” the loan to CMM by, firstly, on two occasions crediting the loan account with “repayments by Miro” and then debiting the amounts in its books as management expenses to CMM.
- Sake24
For more business news in Afrikaans, go to Sake24.com.
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Absa sued for R1.1bn
Apr 22 2012 10:15 Adri van Zyl
Johannesburg – A summons for the payment of R1.1bn was served on Absa Bank and Absa Bank Nominees last week by the curators of Corporate Money Managers (CMM) and the Altron Pension Fund.
In the summons the curators claim that Absa failed in its duty of care and as trustee of the Cash Managed Fund (CMF).
These obligations are imposed on the trustee of a fund in terms of the trust deed and, in this case, the Collective Investment Schemes Control Act.
Absa was the trustee of the CMF, which was marketed as a money market trust, and CMM the portfolio manager. The administration was done by Ayanda, a subsidiary of Fidentia (which was placed under curatorship in 2007).
In April 2009 CMM was put into curatorship after the CMF was closed down because it was unable to meet its obligations to investors. The CMF was shut down by Fidentia co-curator George Papadakis.
In the summons served on Absa, the curators claim that CMF investors suffered R849.16m in losses and the Altron Pension Fund R48.39m.
The parties also claim R251.05m in interest payments on behalf of the investors and R8.5m on behalf of Altron.
The curators argue further that Absa, in its role as trustee, should have realised that the money invested in CMF had not been invested according to the mandate for investments in a money market trust.
The CMF had not, as clients were led to believe, invested in liquid interest-bearing instruments.
Instead of investments in liquid interest-bearing instruments, the investors had advanced money for bridging finance for property transactions.
CMM had repeatedly issued promissory notes between various related companies when it realised it was unable to repay investors’ money. These promissory notes were in breach of the provisions of the Banking Act and were repeatedly rolled over.
The curators say the value of the promissory notes was also much more than the net asset value of the investments in the fund.
It also points to neglect on Absa’s part to correctly value the assets, which is in contravention of the Collective Investment Schemes Control Act.
On Thursday Absa confirmed receipt of the summons. Absa’s group legal counsel Marthinus van Rensburg said the claim was being studied and has been passed on to the legal team for further handling.
The curators also issued a summons against various individuals to prove claims of millions of rands in respect of benefits, money and assets that those individuals had received from the management of almost 26 companies related in some or other way to CMM.
Absa is also involved in a court case with the curators of Ovation, which is claiming R129m from the bank.
Absa is contesting the claim, but in terms of a court ruling last year Ovation may proceed with the claims. The parties are however still awaiting a court date.
Read more about:
corporate money managers | altron pension fund | absa bank
By: Adri van Zyl
2012-04-29
Johannesburg - Over the past week a horrific tale has unfolded of how around R1.15bn belonging to investors who thought their money was safe in a money market has apparently been plundered for personal gain by the directors of various investment companies.
Some of the money (almost R1m) was allegedly even used by the directors to accompany the Springboks on a rugby tour and covered up in the books as “management costs”.
The curators of Corporate Money Managers (CMM), the Cash Managed Fund (CMF) and ten associated companies are on a fierce offensive to try and recover money for the investors in the CMF.
Last week the curators served a summons for R1.1bn on Absa Group [JSE:ASA] which, as CFM trustee, said the curators, was supposed to have picked up the malpractices.
But a summons for the same amount was also issued on 21 individuals, 18 of whom were allegedly part of the "reckless, negligent or deceitful management" of 26 companies through which investors' money in the CMF was apparently siphoned.
The curators' court documents contend that the individuals were all involved in managing CMM and allegedly enriched themselves through misappropriation of the money invested in CMF.
CMM raised money from investors and invested it in the CMF, which was supposed to be a safe money market investment.
The joint and separate actions of the directors of the bank, according to the curators, had led to investors in the CMF suffering a R115bn loss.
It's this amount that the curators are now attempting to recover from individuals who, according to one of them, had been involved in nothing other than fraud which they attempted to cover up.
The money in the CMF was not, as had been intended, invested in safe money market instruments, but was allegedly used for bridging finance for dubious property transactions, loans to companies in trouble and for property developments.
And when things started to go wrong, the losses were allegedly concealed by the issue of worthless promissory notes between the various related companies. These promissory notes, issued between the related companies, were also lodged with Absa as proof that the CMF, of which Absa was the trustee, would be able to meet its obligations to investors.
The promissory notes were however worthless because the companies had no assets and, according to the curators, the issuers and signatories were aware of the fact.
In the process of apparently concealing the insolvency of the related companies, the promissory notes were repeatedly rolled over by cancelling the originals and replacing them with new ones.
The main protagonists in the alleged plundering of the CMF include the directors and management of the CMM and Allegro Holdings, a former subsidiary of the listed company African Dawn.
When CMM was put under curatorship in 2009, Johan Bakkes was the chief executive and head of investments at CMM and a director of seven of the related companies and three trusts, with himself and his family as the beneficiaries.
Frik Vermaak, who was appointed chief executive of Athletics South Africa last December, was the chief executive of Allegro Holdings and a director of Allegro Group Investments, Allegro Bridging, Allegro Property Services and five of the related companies that were allegedly involved in the misappropriation of the money invested in the CMF.
CMM and Allegro Holdings were joint shareholders in the company Miro Holdings, which in turn was the holding company of Miro Capital.
Miro Capital, according to the CMM curators, was one of four companies established with the special purpose of issuing promissory notes in favour of the CMM and the CMF so as to get money from the CMF to finance property deals for four other related companies.
The summons served on the individuals notes that the indebtedness of the respective related companies to one another - and ultimately the CMF - amounts to R1.6bn and that 16 of the individuals involved in managing the companies are jointly and severally responsible for repayment of the R105.6m to CMM or the CMF.
V During the past week Absa announced that it intended defending itself against the steps being taken by the curators.
An amount of R989 000 that the CMM curators are demanding from former board members of CMM and related companies, was apparently spent on a rugby tour to Europe accompanying the Springboks in November 2008.
Two directors of CMM and six board members of Allegro Bridging, including Bakkes and Vermaak, were on the tour.
An amount of R1.1m was apparently withdrawn from CMM’s bank account for travelling expenses.
The curators further argue that investors' money was used for the rugby tour and, by means of creative accounting, was indicated as amortised debt in the CMM and Allegro books.
In the two companies’ books the money spent on the rugby tour was reflected as a loan to a related company, Miro Capital (in which CMM and Allegro were equal shareholders). The payment of R17 000 to each of the board members on the tour was also noted in this loan account.
Miro Capital “repaid” the loan to CMM by, firstly, on two occasions crediting the loan account with “repayments by Miro” and then debiting the amounts in its books as management expenses to CMM.
- Sake24
For more business news in Afrikaans, go to Sake24.com.
----------------------------------------------------------------------------
Absa sued for R1.1bn
Apr 22 2012 10:15 Adri van Zyl
Johannesburg – A summons for the payment of R1.1bn was served on Absa Bank and Absa Bank Nominees last week by the curators of Corporate Money Managers (CMM) and the Altron Pension Fund.
In the summons the curators claim that Absa failed in its duty of care and as trustee of the Cash Managed Fund (CMF).
These obligations are imposed on the trustee of a fund in terms of the trust deed and, in this case, the Collective Investment Schemes Control Act.
Absa was the trustee of the CMF, which was marketed as a money market trust, and CMM the portfolio manager. The administration was done by Ayanda, a subsidiary of Fidentia (which was placed under curatorship in 2007).
In April 2009 CMM was put into curatorship after the CMF was closed down because it was unable to meet its obligations to investors. The CMF was shut down by Fidentia co-curator George Papadakis.
In the summons served on Absa, the curators claim that CMF investors suffered R849.16m in losses and the Altron Pension Fund R48.39m.
The parties also claim R251.05m in interest payments on behalf of the investors and R8.5m on behalf of Altron.
The curators argue further that Absa, in its role as trustee, should have realised that the money invested in CMF had not been invested according to the mandate for investments in a money market trust.
The CMF had not, as clients were led to believe, invested in liquid interest-bearing instruments.
Instead of investments in liquid interest-bearing instruments, the investors had advanced money for bridging finance for property transactions.
CMM had repeatedly issued promissory notes between various related companies when it realised it was unable to repay investors’ money. These promissory notes were in breach of the provisions of the Banking Act and were repeatedly rolled over.
The curators say the value of the promissory notes was also much more than the net asset value of the investments in the fund.
It also points to neglect on Absa’s part to correctly value the assets, which is in contravention of the Collective Investment Schemes Control Act.
On Thursday Absa confirmed receipt of the summons. Absa’s group legal counsel Marthinus van Rensburg said the claim was being studied and has been passed on to the legal team for further handling.
The curators also issued a summons against various individuals to prove claims of millions of rands in respect of benefits, money and assets that those individuals had received from the management of almost 26 companies related in some or other way to CMM.
Absa is also involved in a court case with the curators of Ovation, which is claiming R129m from the bank.
Absa is contesting the claim, but in terms of a court ruling last year Ovation may proceed with the claims. The parties are however still awaiting a court date.
Read more about:
corporate money managers | altron pension fund | absa bank
Monday, April 30, 2012
Top cop baffled by firearms duffers
Top cop baffled by firearms duffers
GRAEME HOSKEN | 30 April, 2012 00:08
Acting national police commissioner Lieutenant-General Nhlanhla Mkhwanazi, who has admitted to having no idea how tens of thousands of officers can have been assessed as either incompetent or not adequately trained in the use of firearms, has appealed to the public not to panic.
Related News
R-5 rifles, shotguns for 'sale' The appeal is being made after heordered that hundreds of weapons confiscated from officers declared to be incompetent in gun-handling be returned to them.
Recently it was revealed that more than 27000 police officers were either not competent or not proficient in the use of state-issued firearms.
Monday next week has been announced as the deadline for the formulation of a plan to ensure that all police officers are competent to use firearms.
According to Mkhwanazi, officers who fail to make the grade and who cannot be placed elsewhere in the police will be forced out.
Mkhwanazi, lashing out at officers who leaked a confidential report on the state of police firearm competency, said there had been "a grave misunderstanding".
"We held several management meetings and, during one such meeting, this internal report was discussed. It was during these discussions that there was a misunderstanding about what to do with those who were not yet competent.
"We're trying to undo this misunderstanding," he said.
Mkhwanazi and his senior management team were last week interdicted by the SA Police Union from disarming police officers.
Despite the interdict, 34 of the 139 members of the Pretoria flying squad, and 90 members of the Hawks in Johannesburg, were disarmed.
Slamming critics, Mkhwanazi, who admitted that the police faced a big challenge, said the service would be criticised if it armed incompetent officers - and if it did not.
"This is not easy. We're facing criminals who do not need competency certificates.
"In the past, we would go to a mountain range and shoot and be declared competent. Now it is a different and costly exercise, which is creating a backlog.
"There are grey areas around police firearm competency. The Firearms Control Act states that policemen have to be competent in the handling of all firearms.
"Because of this, we cannot flout the very law we have been charged to enforce.
"The grey areas, which the internal report highlights, are that though members might need, in principle, to use all three standard-issue weapons and, according to the act, be competent in all three weapons, they don't always use all three weapons on a daily basis.
"A member might only use a pistol on a daily basis that he is competent in, and not a rifle and a shotgun, which he is incompetent in. But because he is not competent in all three, he is declared incompetent, which is not necessarily true," he said.
Mkhwanazi said 129713 officers had undergone firearms training.
"Of these, 102313 are competent and 27400 have been declared not competent.
"But not all 27400 failed, with 20864 having not completed all their training, which includes both a theoretical, legal principles course, and practical training in the use of a firearm."
To be declared fully competent, officers must successfully complete both courses.
Mkhwanazi said the 6536 officers who had failed would undergo urgent retraining.
Asked how the crisis had developed, Mkhwanazi was unable to say.
"I have given a year for this to be resolved. By next week, we will have a plan. Those who are incompetent and who cannot be placed elsewhere will unfortunately have to leave," he said.
'Predator police' in reign of terror
'Predator police' in reign of terror
GRAEME HOSKEN | 30 April, 2012 00:08
Sifiso Makhubu, of Phiri, Soweto, succeeded in suing the police for wrongful arrest and torture Picture: LEBOHANG MASHILOANE
An unprecedented assault by police using unrestrained violence in hunting down criminals is exploding across South Africa.
Related News
Top cops beat pupils - Claim
Video captures cops beating up hawker
Top cop baffled by firearms duffers With pressure mounting on the police to reduce crime and push up conviction rates, officers are pushing the boundaries, leaving hordes of physically and mentally tortured victims in their wake.
With experts warning that torture - which when revealed has a severe adverse effect on prosecutions - is on the rise, many say the line between the police and the criminals is blurring.
For Sifiso Makhubu, torture is something he knows only too well.
Accused of the murder of a Johannesburg policeman three years ago, he and four friends endured nearly 12 hours of agonising torture.
"They beat us. The more I pleaded with them to stop, the more they continued," he said.
With his hands handcuffed behind his back to his ankles, his assailants sprayed him with water and pulled a tyre tube over his face.
"They were doing it to all of us. While they would tube one they would spray us with water and shock us with tazers all over . on our faces, between our legs, everywhere.
"They would tell us we were going to die."
After three years, Makhubu's terror has not ended.
His attackers, still based at the same police stations, often greet him when they see him in the streets of Soweto.
"Nothing has happened to them. I won my case against them but they continue to work. They greet me and ask me how I am doing. I am petrified that something will happen, that this time I will never come home," he said.
Peter Jordi, of the Wits Law Clinic, said the police were predators who, with unrestrained violence, hunted down suspects.
Jordi, pointing to shelves of torture case files, said the violence and power associated with torture gave the police a sense of immunity.
"They have become masters at what they do. After 1994 there was an increase in torture which subsided until the 2000s. Since then there has been a definite increase of unprecedented violence from beatings, electric shocks, near drownings to detention without trial.
"Our law enforcers' string of barbaric actions to find their suspect often results in minibus loads of people being tortured before the right suspect is found.
"Torture is occurring en masse with children falling victim.
"Torture is spiralling out of control. It is happening everywhere with those involved simply moving from one police station to another when caught," he said.
Leading forensic pathologist Reggie Perumal said torture was increasing because the police were paralysed in trying to deal with crime.
"Crime is running away and in the frustration, especially in Gauteng, to bring it under control police are turning to torture.
"From the number of private cases I get it is clear that torture and the violence associated with it, especially in terms of electrocutions with tasers, cattle prods and live wires, is increasing," he said.
Independent Police Investigative Directorate spokesman Moses Dlamini said he could not say if torture was becoming more prevalent and also not say if police management was taking torture seriously.
"There are cases in which officers arrested for torture are, the very next day, promoted. The biggest problem is that torture is not a crime. Instead, a policeman who is a suspect in a torture case is charged with assault with intent to commit grievous bodily harm.
"In our legislation there is no such offence as torture. Draft legislation, which will criminalise torture, has yet to be passed.
"Because torture has not been defined we simply don't know the exact number of offences," he said.
Jacob van Garderen, of Lawyers for Human Rights, said his organisation was "gravely concerned" by the number of cases reported to it.
"What is happening is horrific with cases remaining unresolved for long periods.
"Mechanisms to investigate torture are severely under-developed and under-resourced.
"Though South Africa ratified the UN convention against torture, and is compelled to investigate torture, it has yet to ratify the protocol on the convention against torture which would lead to the establishment of oversight bodies for all places of detention," he said.
Amanda Dissel, the Association for the Prevention of Torture's South African delegate, said it was worrying that South Africa had yet to criminalise torture.
"This is precisely why we see such a recurrence of torture.
"There is a problem in South Africa in ensuring that torture cases are dealt with, with the seriousness they deserve."
Police spokesman Brigadier Lindela Mashigo hit back by saying torture was condemned.
"Respect of human rights is part of [police] training."
GRAEME HOSKEN | 30 April, 2012 00:08
Sifiso Makhubu, of Phiri, Soweto, succeeded in suing the police for wrongful arrest and torture Picture: LEBOHANG MASHILOANE
An unprecedented assault by police using unrestrained violence in hunting down criminals is exploding across South Africa.
Related News
Top cops beat pupils - Claim
Video captures cops beating up hawker
Top cop baffled by firearms duffers With pressure mounting on the police to reduce crime and push up conviction rates, officers are pushing the boundaries, leaving hordes of physically and mentally tortured victims in their wake.
With experts warning that torture - which when revealed has a severe adverse effect on prosecutions - is on the rise, many say the line between the police and the criminals is blurring.
For Sifiso Makhubu, torture is something he knows only too well.
Accused of the murder of a Johannesburg policeman three years ago, he and four friends endured nearly 12 hours of agonising torture.
"They beat us. The more I pleaded with them to stop, the more they continued," he said.
With his hands handcuffed behind his back to his ankles, his assailants sprayed him with water and pulled a tyre tube over his face.
"They were doing it to all of us. While they would tube one they would spray us with water and shock us with tazers all over . on our faces, between our legs, everywhere.
"They would tell us we were going to die."
After three years, Makhubu's terror has not ended.
His attackers, still based at the same police stations, often greet him when they see him in the streets of Soweto.
"Nothing has happened to them. I won my case against them but they continue to work. They greet me and ask me how I am doing. I am petrified that something will happen, that this time I will never come home," he said.
Peter Jordi, of the Wits Law Clinic, said the police were predators who, with unrestrained violence, hunted down suspects.
Jordi, pointing to shelves of torture case files, said the violence and power associated with torture gave the police a sense of immunity.
"They have become masters at what they do. After 1994 there was an increase in torture which subsided until the 2000s. Since then there has been a definite increase of unprecedented violence from beatings, electric shocks, near drownings to detention without trial.
"Our law enforcers' string of barbaric actions to find their suspect often results in minibus loads of people being tortured before the right suspect is found.
"Torture is occurring en masse with children falling victim.
"Torture is spiralling out of control. It is happening everywhere with those involved simply moving from one police station to another when caught," he said.
Leading forensic pathologist Reggie Perumal said torture was increasing because the police were paralysed in trying to deal with crime.
"Crime is running away and in the frustration, especially in Gauteng, to bring it under control police are turning to torture.
"From the number of private cases I get it is clear that torture and the violence associated with it, especially in terms of electrocutions with tasers, cattle prods and live wires, is increasing," he said.
Independent Police Investigative Directorate spokesman Moses Dlamini said he could not say if torture was becoming more prevalent and also not say if police management was taking torture seriously.
"There are cases in which officers arrested for torture are, the very next day, promoted. The biggest problem is that torture is not a crime. Instead, a policeman who is a suspect in a torture case is charged with assault with intent to commit grievous bodily harm.
"In our legislation there is no such offence as torture. Draft legislation, which will criminalise torture, has yet to be passed.
"Because torture has not been defined we simply don't know the exact number of offences," he said.
Jacob van Garderen, of Lawyers for Human Rights, said his organisation was "gravely concerned" by the number of cases reported to it.
"What is happening is horrific with cases remaining unresolved for long periods.
"Mechanisms to investigate torture are severely under-developed and under-resourced.
"Though South Africa ratified the UN convention against torture, and is compelled to investigate torture, it has yet to ratify the protocol on the convention against torture which would lead to the establishment of oversight bodies for all places of detention," he said.
Amanda Dissel, the Association for the Prevention of Torture's South African delegate, said it was worrying that South Africa had yet to criminalise torture.
"This is precisely why we see such a recurrence of torture.
"There is a problem in South Africa in ensuring that torture cases are dealt with, with the seriousness they deserve."
Police spokesman Brigadier Lindela Mashigo hit back by saying torture was condemned.
"Respect of human rights is part of [police] training."
Questions unanswered over NPA prosecutor - DA
Questions unanswered over NPA prosecutor - DA
2012-04-30 22:19
Related Links
NPA suspends Mdluli prosecutor
Advocates shocked at action against prosecutor
NPA defends silence on prosecutor saga
Johannesburg - The Democratic Alliance said on Monday that important questions relating to the suspension of the National Prosecuting Authority's (NPA) corruption prosecutor Glynnis Breytenbach remained unanswered.
Breytenbach, who heads the NPA's specialised commercial crimes unit in Pretoria, was issued issued with a letter of suspension on Monday after receiving a notice of intention to suspend her in February.
According to reports, Breytenbach was responsible for the NPA's arms deal probe and the fraud case against crime intelligence boss Richard Mdluli.
"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," DA MP Dene Smuts said in a statement.
Smuts said the DA had asked acting National Director of Public Prosecutions, advocate Nomgcobo Jiba, during a portfolio committee on justice meeting on17 April, if the threat of suspension was not an attempt to intimidate Breytenbach and if she had been told to drop the fraud charges against Mdluli.
Jiba told the committee that there had never been any instructions or any political pressure. She also said that she did not know where the link between the Mdluli fraud case and Breytenbach’s proposed suspension came from, said Smuts.
The NPA also claimed there was no link between Breytenbach's suspension and Mdluli
"We dismiss those insinuations as baseless," spokesperson Mthunzi Mhaga said.
Mhaga said the charges related to her conduct in handling one of the cases allocated to her," NPA spokesperson.
"We will exercise restraint in commenting on this matter in view of legal implications in labour issues."
He said all the charges would be dealt with in a disciplinary hearing.
- SAPA
Read more on: da | npa | nomgcobo jiba | richard mdluli | glynnis breytenbach | dene smuts
2012-04-30 22:19
Related Links
NPA suspends Mdluli prosecutor
Advocates shocked at action against prosecutor
NPA defends silence on prosecutor saga
Johannesburg - The Democratic Alliance said on Monday that important questions relating to the suspension of the National Prosecuting Authority's (NPA) corruption prosecutor Glynnis Breytenbach remained unanswered.
Breytenbach, who heads the NPA's specialised commercial crimes unit in Pretoria, was issued issued with a letter of suspension on Monday after receiving a notice of intention to suspend her in February.
According to reports, Breytenbach was responsible for the NPA's arms deal probe and the fraud case against crime intelligence boss Richard Mdluli.
"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," DA MP Dene Smuts said in a statement.
Smuts said the DA had asked acting National Director of Public Prosecutions, advocate Nomgcobo Jiba, during a portfolio committee on justice meeting on17 April, if the threat of suspension was not an attempt to intimidate Breytenbach and if she had been told to drop the fraud charges against Mdluli.
Jiba told the committee that there had never been any instructions or any political pressure. She also said that she did not know where the link between the Mdluli fraud case and Breytenbach’s proposed suspension came from, said Smuts.
The NPA also claimed there was no link between Breytenbach's suspension and Mdluli
"We dismiss those insinuations as baseless," spokesperson Mthunzi Mhaga said.
Mhaga said the charges related to her conduct in handling one of the cases allocated to her," NPA spokesperson.
"We will exercise restraint in commenting on this matter in view of legal implications in labour issues."
He said all the charges would be dealt with in a disciplinary hearing.
- SAPA
Read more on: da | npa | nomgcobo jiba | richard mdluli | glynnis breytenbach | dene smuts
Our Ganster State
Our gangster state
Justice Malala | 30 April, 2012 00:08
Now that the ANC has managed to get rid of Julius Malema, its troublesome youth league president, and his rude sidekick Floyd Shivambu, the party might want to concentrate on something meatier. It might want to ask its president, Jacob Gedleyihlekisa Zuma, what kind of rotten state he is running in its name.
The ANC sent Zuma to the Union Buildings. In its name, he governs South Africa. He should be accountable to it if he is not accountable to the rest of us, the citizenry.
He should now account to the ANC about why Richard Mdluli, the head of crime intelligence in the SA Police Service, is back at his desk and not in a court of law or behind bars for corruption.
Nothing smacks of corruption in this country as much as the figure of Mdluli, a man who is being mentioned as a possible national police commissioner. Nothing scares me more than the possibility that such a compromised figure stands to assume so much power.
This much we know is true, thanks to the incredibly brave work of journalists at the Mail& Guardian, the Sunday Times and the City Press newspapers. It is worth noting that these journalists would be in jail today if the Protection of Information Act were in operation.
Here is the first thing: within a year of his appointment to the crime intelligence job in 2009, Mdluli appointed seven of his relatives as secret agents. There is no dispute about this. As you read this, seven members of this man's family are drawing salaries from the national cash pile - money that could be used for the poor, the hungry, those who will die of the cold this winter because they have nowhere to sleep.
Instead, as City Press reported last weekend, it is costing the crime intelligence unit R5-million to employ Mdluli's relatives and supply them with luxury cars.
This is not corruption. This is looting. This is the mentality of people who believe they are invincible, that they are protected from on high. If Zuma is not protecting Mdluli, he should suspend and fire the man immediately for just this one piece of absolute corruption.
But there is more to this rot and the depth of it chills me to the bone. Mdluli was not interviewed by police management for the job he holds. He was instead interviewed by four politicians: Police Minister Nathi Mthethwa, State Security Minister Siyabonga Cwele, the then home affairs deputy minister Malusi Gigaba, who is now minister of public enterprises, and former safety and security deputy minister Susan Shabangu, who is now minister of mineral resources.
Mthethwa is a fierce Zuma defender and is actively campaigning for him to be re-elected as ANC president in Mangaung in December. So is Gigaba, who has acted as the main Zuma defender against attacks by Malema's ANC Youth League. You may also be interested to know that Mthethwa appears on one of the lists drawn up by the Zuma crowd to be in the ANC's top six after Mangaung.
Cwele is the man who has been firing intelligence services heads allegedly because they refused to be used to spy for Zuma. In March Moe Shaik left the State Security Agency. SSA director-general Jeff Maqetuka left in December and the head of the domestic branch, Gibson Njenje, left in September. Cwele is now master and commander of Zuma's spy network.
Mdluli's appointment was not just irregular. It was conspiratorial and it is a crime. These ministers should account for why they were on that panel in the first place and why the then acting national police commissioner, Tim Williams, and other police officials were not on the interviewing panel.
Why were four ministers interviewing a policeman? Were they instructed to hire him and dress up the whole thing?
Will they explain? Of course not. How can Mthethwa explain when, according to City Press, the Hawks were investigating claims that almost R200000 was paid from the crime intelligence slush fund for renovations to his house in KwaZulu-Natal? He is implicated in the crimes. He is compromised.
Mdluli was up on charges of murder, kidnapping, assault and intimidation. There were also charges of massive fraud involving the crime intelligence slush fund. The Mail & Guardian has revealed that those charges were dropped despite a letter from the inspector-general of intelligence, Faith Radebe, in March, in which she said that the National Prosecuting Authority should institute criminal charges against Mdluli: "We are of the opinion that the reasons advanced by the NPA in support of the withdrawal of the criminal charges are inaccurate and legally flawed. We therefore recommend that this matter be referred back to the NPA for the institution of the criminal charges."
That has not happened. Instead, Mdluli is in office and is already re-organising the crime intelligence unit so that it has oversight of all security arrangements for all ministers and dignitaries. What does this mean? Each and every one of Zuma's detractors will be under 24-hour surveillance by this compromised spy boss.
Where are the voices of Gwede Mantashe, Kgalema Motlanthe, Cyril Ramaphosa, Trevor Manuel and others when this rot is being perpetrated in their name? Where is the ANC of OR Tambo?
It is silent, quivering in fear of its own "deployee", Jacob Zuma, a man who is running what is now clearly a gangster state.
Justice Malala | 30 April, 2012 00:08
Now that the ANC has managed to get rid of Julius Malema, its troublesome youth league president, and his rude sidekick Floyd Shivambu, the party might want to concentrate on something meatier. It might want to ask its president, Jacob Gedleyihlekisa Zuma, what kind of rotten state he is running in its name.
The ANC sent Zuma to the Union Buildings. In its name, he governs South Africa. He should be accountable to it if he is not accountable to the rest of us, the citizenry.
He should now account to the ANC about why Richard Mdluli, the head of crime intelligence in the SA Police Service, is back at his desk and not in a court of law or behind bars for corruption.
Nothing smacks of corruption in this country as much as the figure of Mdluli, a man who is being mentioned as a possible national police commissioner. Nothing scares me more than the possibility that such a compromised figure stands to assume so much power.
This much we know is true, thanks to the incredibly brave work of journalists at the Mail& Guardian, the Sunday Times and the City Press newspapers. It is worth noting that these journalists would be in jail today if the Protection of Information Act were in operation.
Here is the first thing: within a year of his appointment to the crime intelligence job in 2009, Mdluli appointed seven of his relatives as secret agents. There is no dispute about this. As you read this, seven members of this man's family are drawing salaries from the national cash pile - money that could be used for the poor, the hungry, those who will die of the cold this winter because they have nowhere to sleep.
Instead, as City Press reported last weekend, it is costing the crime intelligence unit R5-million to employ Mdluli's relatives and supply them with luxury cars.
This is not corruption. This is looting. This is the mentality of people who believe they are invincible, that they are protected from on high. If Zuma is not protecting Mdluli, he should suspend and fire the man immediately for just this one piece of absolute corruption.
But there is more to this rot and the depth of it chills me to the bone. Mdluli was not interviewed by police management for the job he holds. He was instead interviewed by four politicians: Police Minister Nathi Mthethwa, State Security Minister Siyabonga Cwele, the then home affairs deputy minister Malusi Gigaba, who is now minister of public enterprises, and former safety and security deputy minister Susan Shabangu, who is now minister of mineral resources.
Mthethwa is a fierce Zuma defender and is actively campaigning for him to be re-elected as ANC president in Mangaung in December. So is Gigaba, who has acted as the main Zuma defender against attacks by Malema's ANC Youth League. You may also be interested to know that Mthethwa appears on one of the lists drawn up by the Zuma crowd to be in the ANC's top six after Mangaung.
Cwele is the man who has been firing intelligence services heads allegedly because they refused to be used to spy for Zuma. In March Moe Shaik left the State Security Agency. SSA director-general Jeff Maqetuka left in December and the head of the domestic branch, Gibson Njenje, left in September. Cwele is now master and commander of Zuma's spy network.
Mdluli's appointment was not just irregular. It was conspiratorial and it is a crime. These ministers should account for why they were on that panel in the first place and why the then acting national police commissioner, Tim Williams, and other police officials were not on the interviewing panel.
Why were four ministers interviewing a policeman? Were they instructed to hire him and dress up the whole thing?
Will they explain? Of course not. How can Mthethwa explain when, according to City Press, the Hawks were investigating claims that almost R200000 was paid from the crime intelligence slush fund for renovations to his house in KwaZulu-Natal? He is implicated in the crimes. He is compromised.
Mdluli was up on charges of murder, kidnapping, assault and intimidation. There were also charges of massive fraud involving the crime intelligence slush fund. The Mail & Guardian has revealed that those charges were dropped despite a letter from the inspector-general of intelligence, Faith Radebe, in March, in which she said that the National Prosecuting Authority should institute criminal charges against Mdluli: "We are of the opinion that the reasons advanced by the NPA in support of the withdrawal of the criminal charges are inaccurate and legally flawed. We therefore recommend that this matter be referred back to the NPA for the institution of the criminal charges."
That has not happened. Instead, Mdluli is in office and is already re-organising the crime intelligence unit so that it has oversight of all security arrangements for all ministers and dignitaries. What does this mean? Each and every one of Zuma's detractors will be under 24-hour surveillance by this compromised spy boss.
Where are the voices of Gwede Mantashe, Kgalema Motlanthe, Cyril Ramaphosa, Trevor Manuel and others when this rot is being perpetrated in their name? Where is the ANC of OR Tambo?
It is silent, quivering in fear of its own "deployee", Jacob Zuma, a man who is running what is now clearly a gangster state.
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