Petros: Over 600 police arrested
2012-05-02 13:29
Pretoria - More than 600 police officers have been arrested in Gauteng since April last year, provincial police commissioner Lieutenant General Mzwandile Petros said in Pretoria on Wednesday.
Many of the arrests were attributable to tip-offs from community members, he said.
"If there is one thing the people of this province are sick of, it's corruption in the police," he told the national press club in Pretoria.
"It's good news that 600 police have been arrested [because] you want to be working hand-in-glove with people you trust."
The SA Police Service was not shy to investigate and arrest those within its ranks who could not be trusted, Petros said.
There were also concerns about criminals operating in private security companies.
"I shudder to think how many who don't take the [police] oath are involved in crime."
The leaders of security companies had been "very co-operative" with the police in dealing with the problem, he said.
Brigadier Neville Malila said the majority of crimes committed by police officials related to fraud and corruption.
- SAPA
Read more on: police | mzwandile petros | pretoria | johannesburg | crime | corruption
Wednesday, May 2, 2012
Breytenbach 'threatened court action'
Breytenbach 'threatened court action'
2012-05-02 10:18
Read more stories about
Richard Mdluli
Breytenbach 'threatened court action' - 02 May
Questions unanswered over NPA prosecutor - DA - 30 Apr
Mdluli prosecutor shot at - 30 Apr
NPA suspends Mdluli prosecutor - 30 Apr
Madonsela to probe acting top cop - 25 Apr
Public to stay in dark over Mdluli findings - 24 Apr
Protector: No Mdluli probe - 24 Apr
Mdluli: KZN cop in witness protection - 23 Apr
Mthethwa denies nepotism claims - 20 Apr
Johannesburg - A week before her suspension, prosecutor Glynnis Breytenbach threatened to challenge in court a decision not to prosecute crime intelligence boss Richard Mdluli, Beeld newspaper reported on Wednesday.
Breytenbach threatened to take the decision to court for a review if the National Prosecuting Authority did not reconsider its decision not to prosecute Mdluli.
Breytenbach said this in a memorandum to acting NPA chief Nomgcobo Jiba on April 24. Her lawyer, Gerhard Wagenaar, confirmed this to Beeld.
In the memo, she reportedly insisted there was a prima facie case of fraud and corruption against Mdluli. She asked Jiba to ask Lawrence Mrwebi, the director of specialised commercial crimes, to review the decision to withdraw the case against Mdluli.
Otherwise, Breytenbach reportedly said she would not hesitate to take the decision to court.
Her letter of suspension, dated April 23, was only served on her on Monday. The NPA said the charges "relate to her conduct in handling one of the cases allocated to her".
Shot at
On Tuesday, Beeld reported that Breytenbach, regional head of the NPA in Gauteng's specialised commercial crime unit, said she was shot at on April 11 on the N14 highway near an offramp. On April 25 two BMW motorbikes tried to force her off the road while she was on her way to a gym in Centurion.
Hawks spokesperson Colonel McIntosh Polela confirmed Breytenbach reported the shooting immediately after it took place.
According to reports, Breytenbach was responsible for, among other cases, the fraud case against Mdluli.
The NPA said at the time there was no link between Breytenbach's suspension and Mdluli.
City Press reported in March that the allegations against Mdluli include defrauding crime intelligence to buy two new BMWs for him and his wife; appointing several family members as secret agents, and the unauthorised use of safe houses for his personal benefit.
Public Protector Thuli Madonsela last week declined probing allegations of abuse of state funds against Mdluli, saying the matter was being looked at by the Inspector General of Intelligence.
Murder inquest
Mdluli is also involved in an inquest into the murder of his former lover's husband, Oupa Ramogibe.
Criminal charges relating to Ramogibe's 1999 murder were recently withdrawn against Mdluli, court orderly Samuel Dlomo, Colonel Nkosana Sebastian Ximba, and Lieutenant Colonel Mtunzi-Omhle Mthembeni Mtunzi.
The initial charges against Mdluli are intimidation, kidnapping, assault with intent to do grievous bodily harm, murder, attempted murder, and conspiracy to commit murder.
At the time of Ramogibe's killing, Mdluli was branch commander of the Vosloorus police station.
Mdluli is believed to be the front-runner to replace General Bheki Cele as police chief. Cele has been suspended pending the outcome of an inquiry into alleged misconduct relating to two lease agreements for new police headquarters in Pretoria and Durban.
- SAPA
Read more on: npa | richard mdluli | glynnis breytenbach
2012-05-02 10:18
Read more stories about
Richard Mdluli
Breytenbach 'threatened court action' - 02 May
Questions unanswered over NPA prosecutor - DA - 30 Apr
Mdluli prosecutor shot at - 30 Apr
NPA suspends Mdluli prosecutor - 30 Apr
Madonsela to probe acting top cop - 25 Apr
Public to stay in dark over Mdluli findings - 24 Apr
Protector: No Mdluli probe - 24 Apr
Mdluli: KZN cop in witness protection - 23 Apr
Mthethwa denies nepotism claims - 20 Apr
Johannesburg - A week before her suspension, prosecutor Glynnis Breytenbach threatened to challenge in court a decision not to prosecute crime intelligence boss Richard Mdluli, Beeld newspaper reported on Wednesday.
Breytenbach threatened to take the decision to court for a review if the National Prosecuting Authority did not reconsider its decision not to prosecute Mdluli.
Breytenbach said this in a memorandum to acting NPA chief Nomgcobo Jiba on April 24. Her lawyer, Gerhard Wagenaar, confirmed this to Beeld.
In the memo, she reportedly insisted there was a prima facie case of fraud and corruption against Mdluli. She asked Jiba to ask Lawrence Mrwebi, the director of specialised commercial crimes, to review the decision to withdraw the case against Mdluli.
Otherwise, Breytenbach reportedly said she would not hesitate to take the decision to court.
Her letter of suspension, dated April 23, was only served on her on Monday. The NPA said the charges "relate to her conduct in handling one of the cases allocated to her".
Shot at
On Tuesday, Beeld reported that Breytenbach, regional head of the NPA in Gauteng's specialised commercial crime unit, said she was shot at on April 11 on the N14 highway near an offramp. On April 25 two BMW motorbikes tried to force her off the road while she was on her way to a gym in Centurion.
Hawks spokesperson Colonel McIntosh Polela confirmed Breytenbach reported the shooting immediately after it took place.
According to reports, Breytenbach was responsible for, among other cases, the fraud case against Mdluli.
The NPA said at the time there was no link between Breytenbach's suspension and Mdluli.
City Press reported in March that the allegations against Mdluli include defrauding crime intelligence to buy two new BMWs for him and his wife; appointing several family members as secret agents, and the unauthorised use of safe houses for his personal benefit.
Public Protector Thuli Madonsela last week declined probing allegations of abuse of state funds against Mdluli, saying the matter was being looked at by the Inspector General of Intelligence.
Murder inquest
Mdluli is also involved in an inquest into the murder of his former lover's husband, Oupa Ramogibe.
Criminal charges relating to Ramogibe's 1999 murder were recently withdrawn against Mdluli, court orderly Samuel Dlomo, Colonel Nkosana Sebastian Ximba, and Lieutenant Colonel Mtunzi-Omhle Mthembeni Mtunzi.
The initial charges against Mdluli are intimidation, kidnapping, assault with intent to do grievous bodily harm, murder, attempted murder, and conspiracy to commit murder.
At the time of Ramogibe's killing, Mdluli was branch commander of the Vosloorus police station.
Mdluli is believed to be the front-runner to replace General Bheki Cele as police chief. Cele has been suspended pending the outcome of an inquiry into alleged misconduct relating to two lease agreements for new police headquarters in Pretoria and Durban.
- SAPA
Read more on: npa | richard mdluli | glynnis breytenbach
Tuesday, May 1, 2012
Top graft buster targeted
Top graft buster targeted
CHANDRÉ PRINCE | 02 May, 2012
Advocate Glynnis Breytenbach, one of South Africa's top prosecutors, might soon be granted 24-hour police protection after being shot at while driving by unknown gunmen.
Breytenbach - who headed the fraud and corruption case against crime intelligence boss Lieutenant-General Richard Mdluli and several other high-profile South Africans, and is regarded as a no-nonsense corruption buster - has in the past three weeks been the target of a shooting and an attempt to force her off the road while on her way home.
Following the shooting on April 11 and the road attack on April 25, the National Prosecuting Authority yesterday said it would, together with the police, conduct a security and risk analysis.
Her safety will be the subject of a parliamentary discussion.
NPA spokesman Mthunzi Mhaga said the authority's internal security and risk unit would urgently discuss Breytenbach's safety with law enforcement agencies to determine whether she needs protection.
This could include round-the-clock body-guards if a serious threat is identified.
"We're concerned about her life being at risk . protection or the facilitation of protection of NPA employees is done when a threat is identified during a risk assessment," said Mhaga.
If given protection, Breytenbach will be the second prosecutor dealing with allegations against Mdluli to be placed under police guard.
Last year, April Kholeka Gcaleka - who prosecuted Mdluli in a case involving murder, kidnapping and defeating the ends of justice - was also placed "under protection". She was on several occasions escorted from the Boksburg Magistrate's Court by two armed policemen and driven away in a police vehicle.
At the time, Johan Burger, a senior analyst at the Institute for Security Studies, said the two most likely scenarios in which Gcaleka would be assigned a police escort were if there were "a typical Mafia-style crime network, in which case everyone involved in the trial should be protected", or if Mdluli's influence were "so great that there would be fears about her safety".
Breytenbach is understood to have pushed for the fraud case against Mdluli to be continued, but it was questionably removed from the court roll in December.
The charges relate to Mdluli's alleged use of state funds to buy a BMW car for personal use, and abuse of the police's secret slush fund.
The shooting at Breytenbach's car occurred amid growing suspicions that Mdluli, said to be close to President Jacob Zuma, will be appointed national police commissioner once suspended police boss Bheki Cele has left the scene.
Already, all criminal charges and internal police disciplinary proceedings against Mdluli have been withdrawn.
Yesterday, Mdluli joined Zuma and others at Workers' Day events in Bloemfontein.
The NPA's concerns about Breytenbach's safety follow reports that her car was attacked in Centurion.
Beeld yesterday reported that Breytenbach, regional head of the NPA in Gauteng's specialised commercial crime unit, said she was shot at on April 11 near an off-ramp on the N14 highway while on her way to her home in Centurion.
On Wednesday last week, two BMW motorcycles tried to force her off the road while she was on her way to the gym.
"If it was an attempt to intimidate me, it was not successful," she said.
She reported both incidents to the Hawks, but not to the police because she could not identify her alleged assailants.
A seasoned advocate, Breytenbach has been at the helm of sensitive high-profile cases, including the arms deal investigation and the probe into the awarding of mining rights at Sishen to politically-connected Imperial Crown Trading.
Kumba Iron Ore subsequently laid a charge of fraud against ICT, and Breytenbach was appointed prosecutor in the case.
On Monday, Breytenbach was suspended - three months after being served with a notice of intention to do so.
Other than saying that the charges "relate to her conduct in handling one of the cases allocated to her", the suspension letter did not elaborate.
Her lawyer, Gerhard Wagenaar, confirmed her suspension by acting NPA head advocate Nomgcobo Jiba, saying the official reason given was that his client had allegedly abused her powers in the Kumba fraud case.
Wagenaar said he did not know how many charges she faced as they had not received a charge sheet.
Wagenaar said they would decide on the way forward once they had received more details from the NPA.
NPA communications manager Bulelwa Makeke said a disciplinary hearing would be convened within about two weeks.
Asked about the timing of Breytenbach's suspension, Makeke said the delay was due to correspondence between Breytenbach and the NPA, including clarity and further explanations of issues raised by the authority.
Breytenbach has not yet reported the shooting to her NPA bosses.
Said Mhaga: "[We are] worried that the matter was never reported to our security and risk unit because she is still an NPA employee, although on suspension.
"We will follow up this matter with law enforcement and our unit will contact her to get more details and how best to assist her."
Hawks spokesman Colonel McIntosh Polela yesterday confirmed that Breytenbach had reported the incidents to his unit immediately after they happened.
He, however, said she spoke to a senior Hawks official and specialised crime unit investigators. No official case was opened.
"Without an open case, it would be difficult for the Hawks to proceed, but we will follow up on it," said Polela.
The shooting - seen as an intimidation attempt - along with Breytenbach's suspension, has outraged the African Christian Democratic Party's Steve Swart, a member of parliament's justice and constitutional development portfolio committee.
"It is very clear that this campaign of intimidation is linked to advocate Breytenbach's involvement in high-profile cases, including her resistance to the dropping of charges against crime intelligence boss, Richard Mdluli and [Imperial Crown Trading] and [expelled ANC Youth League president Julius] Malema matters," Swart said.
He said prosecutors should be able to perform their duties without fear, favour or prejudice. Swart said the ACDP had previously expressed concerns about the safety of prosecutors in high-profile cases.
"This case cries out for such urgent protection. The ACDP calls on the NPA to urgently provide bodyguards for Advocate Breytenbach, considering that she states she is still being followed."
Swart said the matter would be pursued in parliament.
CHANDRÉ PRINCE | 02 May, 2012
Advocate Glynnis Breytenbach, one of South Africa's top prosecutors, might soon be granted 24-hour police protection after being shot at while driving by unknown gunmen.
Breytenbach - who headed the fraud and corruption case against crime intelligence boss Lieutenant-General Richard Mdluli and several other high-profile South Africans, and is regarded as a no-nonsense corruption buster - has in the past three weeks been the target of a shooting and an attempt to force her off the road while on her way home.
Following the shooting on April 11 and the road attack on April 25, the National Prosecuting Authority yesterday said it would, together with the police, conduct a security and risk analysis.
Her safety will be the subject of a parliamentary discussion.
NPA spokesman Mthunzi Mhaga said the authority's internal security and risk unit would urgently discuss Breytenbach's safety with law enforcement agencies to determine whether she needs protection.
This could include round-the-clock body-guards if a serious threat is identified.
"We're concerned about her life being at risk . protection or the facilitation of protection of NPA employees is done when a threat is identified during a risk assessment," said Mhaga.
If given protection, Breytenbach will be the second prosecutor dealing with allegations against Mdluli to be placed under police guard.
Last year, April Kholeka Gcaleka - who prosecuted Mdluli in a case involving murder, kidnapping and defeating the ends of justice - was also placed "under protection". She was on several occasions escorted from the Boksburg Magistrate's Court by two armed policemen and driven away in a police vehicle.
At the time, Johan Burger, a senior analyst at the Institute for Security Studies, said the two most likely scenarios in which Gcaleka would be assigned a police escort were if there were "a typical Mafia-style crime network, in which case everyone involved in the trial should be protected", or if Mdluli's influence were "so great that there would be fears about her safety".
Breytenbach is understood to have pushed for the fraud case against Mdluli to be continued, but it was questionably removed from the court roll in December.
The charges relate to Mdluli's alleged use of state funds to buy a BMW car for personal use, and abuse of the police's secret slush fund.
The shooting at Breytenbach's car occurred amid growing suspicions that Mdluli, said to be close to President Jacob Zuma, will be appointed national police commissioner once suspended police boss Bheki Cele has left the scene.
Already, all criminal charges and internal police disciplinary proceedings against Mdluli have been withdrawn.
Yesterday, Mdluli joined Zuma and others at Workers' Day events in Bloemfontein.
The NPA's concerns about Breytenbach's safety follow reports that her car was attacked in Centurion.
Beeld yesterday reported that Breytenbach, regional head of the NPA in Gauteng's specialised commercial crime unit, said she was shot at on April 11 near an off-ramp on the N14 highway while on her way to her home in Centurion.
On Wednesday last week, two BMW motorcycles tried to force her off the road while she was on her way to the gym.
"If it was an attempt to intimidate me, it was not successful," she said.
She reported both incidents to the Hawks, but not to the police because she could not identify her alleged assailants.
A seasoned advocate, Breytenbach has been at the helm of sensitive high-profile cases, including the arms deal investigation and the probe into the awarding of mining rights at Sishen to politically-connected Imperial Crown Trading.
Kumba Iron Ore subsequently laid a charge of fraud against ICT, and Breytenbach was appointed prosecutor in the case.
On Monday, Breytenbach was suspended - three months after being served with a notice of intention to do so.
Other than saying that the charges "relate to her conduct in handling one of the cases allocated to her", the suspension letter did not elaborate.
Her lawyer, Gerhard Wagenaar, confirmed her suspension by acting NPA head advocate Nomgcobo Jiba, saying the official reason given was that his client had allegedly abused her powers in the Kumba fraud case.
Wagenaar said he did not know how many charges she faced as they had not received a charge sheet.
Wagenaar said they would decide on the way forward once they had received more details from the NPA.
NPA communications manager Bulelwa Makeke said a disciplinary hearing would be convened within about two weeks.
Asked about the timing of Breytenbach's suspension, Makeke said the delay was due to correspondence between Breytenbach and the NPA, including clarity and further explanations of issues raised by the authority.
Breytenbach has not yet reported the shooting to her NPA bosses.
Said Mhaga: "[We are] worried that the matter was never reported to our security and risk unit because she is still an NPA employee, although on suspension.
"We will follow up this matter with law enforcement and our unit will contact her to get more details and how best to assist her."
Hawks spokesman Colonel McIntosh Polela yesterday confirmed that Breytenbach had reported the incidents to his unit immediately after they happened.
He, however, said she spoke to a senior Hawks official and specialised crime unit investigators. No official case was opened.
"Without an open case, it would be difficult for the Hawks to proceed, but we will follow up on it," said Polela.
The shooting - seen as an intimidation attempt - along with Breytenbach's suspension, has outraged the African Christian Democratic Party's Steve Swart, a member of parliament's justice and constitutional development portfolio committee.
"It is very clear that this campaign of intimidation is linked to advocate Breytenbach's involvement in high-profile cases, including her resistance to the dropping of charges against crime intelligence boss, Richard Mdluli and [Imperial Crown Trading] and [expelled ANC Youth League president Julius] Malema matters," Swart said.
He said prosecutors should be able to perform their duties without fear, favour or prejudice. Swart said the ACDP had previously expressed concerns about the safety of prosecutors in high-profile cases.
"This case cries out for such urgent protection. The ACDP calls on the NPA to urgently provide bodyguards for Advocate Breytenbach, considering that she states she is still being followed."
Swart said the matter would be pursued in parliament.
Fight against graft 'dismal'
Fight against graft 'dismal'
GRAEME HOSKEN | 02 May, 2012
A scathing report on government corruption has highlighted "grave concerns" about the lack of commitment to fighting the scourge.
The Public Service Commission report - presented at a recent Independent Police Investigative Directorate conference in Bloemfontein - revealed dismal performance in investigating corruption in state departments.
The report, by commissioner Selinah Nkosi, focused on allegations of corruption made to the National Corruption Hotline since its establishment in 2004, feedback from the police and the independent police watchdog, and the results of national and provincial government investigations of corruption.
Nkosi expressed "grave concern" about corruption and the inability of government departments to investigate it rigorously.
Nkosi criticised both the police and the police watchdog for their failure to report on their investigations.
The National Corruption Hotline had received feedback on only 45% of independent directorate investigations, and on only 53% of investigations by the police . The directorate and the police had closed only 28% and 41% of corruption cases, respectively, Nkosi said.
"The lack of feedback is forcing the commission to consider issuing summonses against [state] departments.
"The commission believes that all government departments must streamline procurement processes to eradicate corruption, with department heads held accountable if disciplinary action is not instituted within 60 days."
Tendersure CEO Werner Coetzee said the cost of corruption to South Africa was estimated to be as much as R675-billion.
"We extrapolated this figure from organisations such as the World Bank and World Trade Organisation, which estimate the total cost of a country's corruption being 20% of the total spent on tenders - which for South Africa is extremely frightening," he said.
Paul Hoffman, director of the Institute for Accountability, said: "Willie Hofmeyr, of the Asset Forfeiture Unit, estimates that R30-billion goes down the corruption tube through government tenders, and arms-deal expert Andrew Feinstein estimates the value of bribes paid in that deal at R2.1-billion."
Independent Police Investigative Directorate spokesman Moses Dlamini said the lack of feedback was due to "some matters still being investigated [or] feedback being given direct to the complainants".
THE FACTS AND FIGURES
137512 calls received;
14300 possible corruption cases identified;
9582 of the 14300 cases sent to government departments for investigation;
Feedback received on only 4859 cases;
Of 4859 cases, 3381 finalised; and
Of those successfully investigated, 603 officials fired, 226 suspended, 134 fined, 16 demoted, 330 given a final written warning, 190 prosecuted - and R120-million recovered.
TOP FORMS OF CORRUPTION
Fraud/bribery;
Abuse of government resources/vehicles;
Mismanagement of government funds; and
Identity document fraud.
Celebrity lawyer’s ‘hit’ plan
|
De Wet Potgieter
Pretoria’s controversial celebrity lawyer, Peet Viljoen, due for trial next week in the R100m land scam involving prime property owned by the city of Johannesburg, allegedly approached a former associate of the fugitive Czech billionaire, Radovan Krejcir, for assistance in finding somebody to kill two prominent businessmen on his behalf.
“Peet asked me who could ‘take care’ of Zunaid Moti and Willie Botha,” Jerome Safi told The New Age this week. Soon after the meeting with Viljoen that took place in Bedfordview a month ago, Safi made a statement containing these allegations to the investigating officer, Capt Jan Judeel.
This was confirmed by police spokesperson Lt-Col Lungelo Dlamini, who said the statement had been handed to the prosecutor in the case for a decision.
Safi, a former confidante of Krejcir, was taken in for questioning by the police soon after the German supercar mogul Uwe Gemballa was abducted from OR Tambo airport in January 2010 on arrival.
The two men Viljoen allegedly wanted to be “taken care of”, according to Safi, are Willie Botha, former MD of Sharemax, and 37-year-old car-loving businessman Zunaid Moti, who was implicated in the alleged fraudulent land deal that he (Viljoen) is due to face in court with several other accused.
Details of the alleged assassination plots surfaced on Wednesday when word got around in the Gauteng underworld that Viljoen was allegedly spreading rumours in an effort to create tension between Krejcir and Safi.
“He (Viljoen) is jeopardising people’s lives,” Safi’s uncle, Dave Safi, told The New Age. Dave Safi said discussions between him and Krejcir defused the bad blood created by Viljoen’s rumour mongering in time and cleared the air.
Approached for comment, Krejcir confirmed that he had five meetings with Viljoen recently regarding business proposals. His last meeting with Viljoen was on Wednesday morning.
However, Krejcir says there is more to the story: “Peet told me earlier that Jerome said to him he has to kill me,” Krejcir said. Viljoen said when he asked Safi why he wanted Krejcir dead, he replied: “If I don’t kill Radovan, he will kill me.”
According to Jerome Safi, he met Viljoen some time ago when he was approached with possible business deals. “Peet brought me numerous illegal deals involving municipal properties,” says Krejcir.
It was during one of those meetings that Viljoen allegedly wanted to know from him how he could upset Krejcir enough to have Moti killed. “He was hoping that Moti’s death would mean his problems with his court case would go away.”
Krejcir confirmed that Viljoen approached him for the first time a month ago, with claims that Moti told him they were partners importing cars into the country and abusing his name to create business for him.
“He wanted to make me angry with Zunaid,” Krejcir said.
He then insisted Viljoen take a polygraph test to find out if he was lying. “I am waiting for the final results,” Krejcir said.
dewetp@thenewage.co.za
---------------------------------------------------------------------------------
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
-------------------------------------------------------------------------------
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
---------------------------------------------------------------------------
--------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------
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
Subscribe to:
Posts (Atom)
