Madlanga Commission | Section 27 under scrutiny

[00:00:00]Now, investigating directorate against corruption or IDEX head advocate Andrea Johnson faced intense questioning at the Madlanga Commission yesterday. The commission has criticized advocate Johnson for applying the wrong legal test when assessing a section 27 referral. Now, the referral ultimately led to the investigation of crime intelligence head Lieutenant General Dumisani Kumalo and six others. The commission's chairperson, Justice Zuiseli Madlanga, also criticized Johnson after she conceded that she had mistakenly assessed the referral using a subjective test instead of the objective test required by law. So to weigh in on advocate Andrea Johnson's testimony yesterday, we're joined now by senior lecturer at the Vitz School of Law, Dr. Shadi Mahanway. Dr. Mahane, thanks so much for your time. Welcome to Morning Live.

[00:00:52]>> Thank you for having me. So from a legal perspective, first and foremost, how will you how have you assessed advocate Andrea Johnson's appearance before the commission so far?

[00:01:06]I think based on yesterday's evidence um just apart from the way she answered the questions I think yesterday's evidence shifted from the inquiry of from the inquiry of just an individual or individual conduct to institutional accountability because remember this is the head of an anti-corruption um institution. So I think the commission wasn't simply asking whether advocate Johnson made the correct decisions but it was asking whether IDC exercised its statuto powers lawfully from the very beginning because she was the one who was supposed to ensure that IDC uses its public powers um within the limits of the law. So se the section 27 referral became the focal point because it is the legal mechanism that triggers ID's investigative jurisdiction. So the commission now wasn't just it it was asking whether IDC merely received a complaint or whether it played a role in creating that complaint that ultimately gave it the jurisdiction to investigate.

[00:02:06]So I think that distinction is very important because investigative institutions must be independent and they must also exercise powers only conferred to them by law. So I think based on the evidence that she was giving yesterday, it basically shifted the inquiry from just an individual conduct into um questioning the whole institution instead.

[00:02:27]>> And and then just staying with that central focus on the section 27 referral. Um why do you believe Dr. Maneu had this very highly experienced advocate struggling to define or to explain um a fundamental legal concept such as section 27 and that section 27 referral affidavit uh to justice Madanga and the commission at large commission was testing the standard of leadership that is expected from the head of an anti-corrupt institution, right? Um I don't think they were necessarily looking at whether she had the experience or whether she understood the law. I think they understand that she does. Um I think she has over 30 years experience. So I think throughout her testimony, there were repeated references to her experience. Not because the commissioners doubted that she understood the law, but because they were asking whether someone with that level of expertise would appreciate the legal implications of decisions that she was making or the decisions that were being made under her as the head of that institution. So I think in other words, the issue was not really about her legal knowledge, but more about accountability for the exercise of public power.

[00:03:43]M and and and of course the commission also questioning whether um IDC had in fact applied the correct legal test especially with regard to this uh complaint that was referred to IDAC uh via the office of the police um minister Senzon Kunu through his chief of staff Rejin Kabinde uh and how IDC actually went about uh uh triggering their jurisdiction in this entire matter. What did you make of all of that?

[00:04:17]>> That was a very that was a very interesting part of um the testimony yesterday because I think the reason why the commissioners kept probing into that section 27 referral was the difficulty that lay in how advocate Johnson gave us the chron the the chronology of the events. Right. So the minister did not um the the minister's letter itself did not engage ID statutory mandate.

[00:04:42]Remember section 27 is the one that triggers um jurisdiction for IDC. So that letter from the minister it didn't engage um IDE statutory mandate and advocate Johnson also accepted that when the commissioners were asking um how that section 27 affidavit came about. So the the section 27 um affidavit only emerged afterwards. So the commission was So the commission asked um whether Idok approached Mr. Adams to obtain an affidavit that would basically provide the legal basis for an investigation that had basically effectively already begun. So Advocate Johnson accepted that the investigator um acting under her authority um contacted Adams but maintained that there was nothing improper about that um conduct. So the commission um however was testing whether the sequence or that chron that chronology reflects the ordinary receipt of a complaint or whether it suggests that jurisdictional function was created after the fact to give IDC jurisdiction >> and and of course quite a bit of time spent on that particular matter of IDC actually obtaining that section 27 um referral from uh Adams and again also looking at what was contained in um whatever was referred to IDAC and what they then ultimately Dr. Bahan ended up investigating.

[00:06:07]That was very interesting.

[00:06:11]Yes. Because if you remember from the testimony um they asked that or the commissioners asked why it seemed as if though um Mr. Adam's affidavit included more information than somebody or a lay person would know in order to trigger that um investigation. So if a complaint is genuinely made by a member of the public that's entirely consistent with a statutory framework, right? The concern here was that it's a bit different because um the investigating authority itself may have influenced the content of that complaint that later became a basis of its own investigation. So it seemed I think the question that the commission is basically asking right now is whether IDC created its own jurisdiction and then formulated its own um investigation in order to investigate everybody else who was implicated in that um section 27 affidavit.

[00:07:06]So, do you believe that Johnson successfully distanced IDACK from allegations uh that it is conducting political turf wars given what was uh testified to yesterday and given the questioning by the commission and at points her inability to properly explain why uh they ended up investigating um General Kumalo and others. Do you think that, you know, uh, she did enough to allay some of the fears that they may be involved in turf wars as IDA?

[00:07:46]>> I think that's a that's a tricky one, right? Um, because I think the broader question now is it's it's more of a constitutional issue because remember IDC was established from the Zundo Commission or the State Capture Commission to strengthen South Africa's response to high level corruption. So its legitimacy not only depends on investigating corruption but also in demonstrating that it its exercise of public power is lawful, transparent and independent. So if we have the head of that institution now being questioned about um the manner in which certain in investigations were conducted, it it it cast a cloud over not only the advocate Johnson herself but also the institution itself. whether she was able to distance Idok from the th those kind of allegations or not I don't think so um because if you think IDC you think the head of IDC so yes it may not necessarily be about the institution itself it's mostly a constitutional issue when it comes to accountability but whether she was able to distance IDC from all of these allegations I'm I'm not quite sure about that because she is the head of IDC so basically she is also the face of that institution and and and if we just take it back a few steps, Dr. Mahan, again, looking at that um affidavit, you know, and and and what was contained in the dockets, uh she was quizzed about this over and over again in terms of uh what was contained amounted to suspicions at best. and and and how you move then from um Adams's complaint about his dockets going missing and his dockets not being um you know uh worked on or investigated to uh now looking into an HR issue uh that involves uh a former employee of BMW in Brigadier McQue and uh then also uh into General Dumisani Kumalo uh and Mashaba and others.

[00:09:50]How do you go from that complaint and you land somewhere where you end up charging the whole head of crime intelligence?

[00:10:02]That was something that was also a bit shaky. How did you see that?

[00:10:08]>> Indeed. And I think maybe because we are also speculating here because she didn't give us all the the evidence through her testimony. I think what we need to take from that also is that investigators are not confined to specific names appearing in that initial complaint. Right? So the issues that um advocate Johnson repeatedly the issues the issue was that she repeatedly asked she [snorts] was repeatedly asked to explain where those additional names came from and basically give evidence that justified the inclusion of those names. Right? So I think she wasn't able to clearly identify the evidential pathway. That is why the commissioners kept asking her the same questions over and over and over. That doesn't prove that the investigations were unlawful, but it does raise um legitimate questions about whether each investigative step was rationally connected to the evidence, which is a constitutional requirement um whenever public power is exercised. So she wasn't able to give us or she wasn't able to give the commission a legitimate justification or a legitimate reason as to how everybody's name ended up in that process. And that is exactly why she the commissioners kept asking her the same questions over and over and over because she wasn't able to justify that. I'm not sure what's going to happen today, but hopefully she will be able to give us um the correct sequence that basically led to everything that um transpired with those investigations. and and you mentioned the chronology earlier and and that becomes important even if you just look at the timeline of um Adams's complaints you know um the the the from the first complaint and uh how it moved from Cape Town to uh to triggering IDex um their involvement in that whole investigation that seemed rather quick by South African standards. I'm not sure what you made of that because as as lay people, we know it takes forever for the South African Police Service in most cases to get going.

[00:12:11]>> So if you look at yesterday's questioning, um it repeatedly focused on whether there was a proper legal and evidential basis for initiating those investigations. Right? So the commissioners were probing whether the section 27 process was used as a parliament as as parliament intended because they remember this is legislation and parliament makes the legislation. Right? So they were trying to establish whether that section 27 was used the way parliament had intended or whether the affidavit genuinely initiated that investigation and whether the subsequent expansion of the investigation was supposed was supported by evidence. So those are serious questions but um I think at at the end of the day they remain questions because they're not findings yet. Um the commission is still trying to to find the facts because remember the commission is a factf finding process.

[00:13:01]So they haven't reached a conclusion or they haven't made findings. But that section 27 and that affidavit are basically going to be I think another focal point today because in order for the commission to make the findings on whether the correct steps were used when public power was exercised, they need to probe further into how those investigations came about. M and of course um you know there was a scathing lesson in there as well for advocate Andrea Johnson with Justice Madlanga not holding back. Uh to quote what he said even a law student doing their first year would know that. How could you mix the subjective test and objective test?

[00:13:42]Completely escapes me. uh is what uh Justice Madanga said to advocate Johnson um you know as she was being criticized for applying the wrong legal test when she was considering uh that um Adam's complaint and its compliance with the NPA act. Again credibility it speaks to the credibility and how we as lay folk then view IDAC.

[00:14:09]>> Exactly. So, um, that that was I think my favorite part of [laughter] the testimony yesterday. Um, I don't think that Justice Madanga was basically saying she didn't understand um the test. I think he was basically saying, "I know that you understand the test, but because um you're not able to justify why you made certain decisions, it seems as though it was an oversight on her part."

[00:14:36]And then and there were quite a few times when she sort of made that sort of concession and and I was saying and and and this is of course purely subjective in this instance. This is my view on this particular matter. Dr. where I don't think advocate Andrea Johnson didn't understand what she was doing and and and I was just wondering is she at this point by admitting and conceding uh to some of these points um from the commissioners is she rather choosing to accept certain of these uh concessions and say well I'd rather say I didn't know as opposed to admitting that perhaps I did something that may be more nefarious in nature.

[00:15:23]>> Exactly. So, um if you if you look at the pattern that most of the witnesses do or what what they do when it comes to giving evidence at the commission, what they normally do is if somebody says, "I don't remember or I'm not sure," it's because they're trying not to perjure themselves. Because remember, perjury is a criminal offense. So um it's easier to say you don't remember or it was maybe oversight so that you don't um implicate yourself in that sense because remember on the first day of her appearance she invoked her section 35 that she will not incriminate herself because she's already under a criminal investigation.

[00:15:58]So it's easier in in certain instances to say you don't remember or you don't know because then you are not perjuring yourself because intention is a much higher threshold to prove when it comes to perjury. If we can't necessarily um prove that you had the intention to mislead, then we can't um charge you or you cannot be charged or found guilty of perjury. So if you it's not necessarily that they are denying or that they are lying in that sense or they're being untruthful, but it's it's definitely easier to say you don't remember because then the he who alleges must prove. So if the commission is of the view that that you are being untruthful, they would also have to prove intention that you basically intentionally misled the commission. So it's easier to say you don't remember.

[00:16:44]>> And of course, um I know you don't have one, but I'm going to ask you to just quickly peer into your crystal ball and looking at what happened yesterday, what can we expect today? Also taking into account the fact that the commission adjourned earlier than usual uh because Advocate Johnson was apparently not feeling too well or feeling the effects of her medication. Um let's just speculate. If she were to not appear today, should we read anything into that or should we just leave it as it is that she was not feeling well?

[00:17:17]I think we should leave it as she was not feeling well and hope she hopefully she will come back and clarify all the questions that the commission has.

[00:17:26]>> Well, it's going to be another interesting day and no doubt you and I Dr. Mahandu among others will be watching. And I must just say I generally tend to watch the commission on the SABC's YouTube channel. And yesterday, you know, 30,000 people at around 10:00 a.m. was sitting and watching the commission. And you'd imagine these are people who are at work. But it just goes to show the interest that South Africans have in the Madlanga Commission. But thank you so much Dr. Shadi Mahan was a senior lecturer at the Vitz School of Law giving us some analysis regarding advocate Andrea Johnson's testimony at the Madlanga Commission yesterday expected to continue today.