Bugging: How cops lied

Rob Rose, Stephan Hofstatter and Mzilikazi Wa Afrika | 19 May, 2012 23:57

The Sunday Times can today reveal that crime-intelligence officials duped a judge into allowing them to illegally eavesdrop on cellphone calls made by suspended national police commissioner Bheki Cele - and this newspaper's journalists.

EmailPrintCourt papers lay the blame at the feet of KwaZulu-Natal crime-intelligence head General Deena Moodley, but the interception application would also have had to be signed by his national boss, Lieutenant-General Richard Mdluli.

Intelligence officials duped retired Judge Joshua Khumalo into signing the order by:

Submitting a request for an interception order for certain numbers, but lying about who those numbers belonged to;

Claiming Cele's number belonged to a "Thabani Mdlalose" of Lamontville in Durban; and

Claiming that the cellphones used by Sunday Times reporters belonged to "Sya Mkhize" of Gillespie Street in Durban, and a "Zakhele Cele" of Pinetown, KwaZulu-Natal.

The order was granted on December 6 2010, soon after this newspaper produced a series of exposes about dodgy police tenders.

The events fuel suspicion that rogue intelligence agents could be slipping the names of other public figures and journalists into bogus interception applications made to judges to lend an air of legitimacy to illegal surveillance.

Police Minister Nathi Mthethwa told the Sunday Times this week that officials who did this were committing crimes "will have to face the music".

"They will be brought to book ... how many people have [been bugged] without them knowing? An investigation should point to these things, and say these are the numbers [illegally bugged],'' he said.

The Interception of Communication Act of 2002 says it is illegal for anyone, including police officers, to intercept anyone's calls, unless a judge agrees it is "necessary" in order to investigate a serious offence. The application must "indicate the identity of the person or customer" whose calls will be intercepted.

Judge Khumalo's order gave the police the ability to record "real-time" cellphone calls, get records of all SMSes and MMSes, as well as track the GPS location of the cellphone at all times.

Cele wouldn't reveal if he knew who was the driving force behind bugging his phone. He told the Sunday Times that he was "keenly awaiting the finalisation of the current investigation into my illegal bugging to establish the identity of those who ordered it, and their reasons for doing so".

He said the scandal "serves to illustrate the extent of the rot that I have been battling in the SAPS since my appointment as police commissioner".

At the time of the interception order the journalists were engaged in an investigation into Cele's role in the police lease scandal that led to his suspension. The commission of inquiry into the matter is expected to publish its findings soon.

Affidavits filed by two policemen in the suspension proceedings of KwaZulu-Natal crime intelligence boss Major-General Deena Moodley say Moodley gave the instruction.

Papers filed in the Durban Labour Court in February show that Lieutenant-General Fani Masemola served Moodley with a suspension notice for allegedly spying on "certain journalists" under false pretences.

Masemola says Moodley issued a "verbal instruction" in November 2010 to "have the cellular conversations of certain journalists intercepted, well knowing that such application [contravenes the interception act] in that such application will contain information which is false, incorrect or misleading".

In a follow-up letter, Masemola accuses Moodley of breaking the law by knowingly disguising the names of people whose phones would be bugged.

"Your client was well aware that the Act 70 application would not reflect the interception of cellular phones for the identified individuals, as this would not have been a legitimate ground for interception," he says.

Supporting affidavits by two of Moodley's officers, Colonel Brian Padayachee and Colonel Dumisani Zulu, confirm that they received the instruction from Moodley - but they claim it was perfectly legal.

"I hereby confirm that I was tasked by Major-General D Moodley during November 2010 to involve myself in a covert investigation into the activities of certain journalists that posed a threat to the organisation," says Padayachee.

"The operation involved the handling of operational information obtained by contact persons by myself and the interception and monitoring of calls by Colonel D Zulu. At no stage did I nor Colonel Zulu, who was present at the meetings regarding the journalists, receive any unlawful instructions from Major-General D Moodley."

Zulu also confirms the instruction, and says it was not "unlawful".

When contacted, Moodley said: "My contention is that I did nothing illegal ... the matter is now still being investigated, so I don't want to say anything [and] don't want to be quoted out of context, or in context."