"EVEN A FIRST YEAR LAW STUDENT KNOWS THIS" JUSTICE MADLANGA TELLS ADVOCATE ANDREA JOHNSON

[00:00:00]uh bypassing of of of the vetting. Um those are the ones that talk to the systemic capture of of the crime uh intelligence division. He's not in paragraph 4. He's and what you're referring to now, he's not giving you facts that support his suspicion because that's what 27B requires, the basis for his suspicion. what he does in four uh on its terms. He says I suspect that which you're referring to now. He says I suspect that General Kumalo and other senior officers in crime intelligence including Maddo and Luchaba were manipulating procurement processes and processes to appoint and promote certain members to higher positions. So it's a suspicion. So you you can't say when we ask you that okay he he's made the suspicion to you. So let's say he complies with a what how does what are the grounds that he has stated in his affidavit in support of that suspicion you you can't say uh where he states manipulating processes procurement processes and processes to appoint and then you say those are the grounds that that's faulty reasoning uh it is a suspicion on his terms it is he tells you that's what I suspect the question to do is where in the affidavit did you find that he has put down grounds for that suspicion? Um on on my reading um Commissioner Baloy, it is found for those ones on paragraph three where he said, "My suspicion about General Kumalo and others became more clearer when I found an envelope pushed under my office door at Parliament which contained some crime intelligence procurement documents using secret funds of crime intelligence and vetting documents. It's I can take it no further than that is that that is my reading of where he finds these suspicions.

[00:02:10]>> Factual conclusion after factual conclusion.

[00:02:15]Advocate Johnson can never give you the facts that undergur those factual conclusions. All of the things you are addressing now are themselves factual conclusions. Do you understand what I'm saying? Do you understand what I'm saying?

[00:02:35]>> If if you could just take >> those are factual conclusions. Let me give you let let me give you agree. Do you agree?

[00:02:42]>> I understand >> those are factual. Do you agree?

[00:02:45]>> I agree.

[00:02:47]>> So if we go back to um Miss Silo's question, she wants to understand what those what that factual substratum is.

[00:02:59]What facts do you rely on to say those factual conclusions and you now accept that they are factual conclusions? What facts underly those conclusions to lead to the fact that B of 27 is satisfied? On what basis? It cannot be on the conclusions.

[00:03:29]Let me give you an example.

[00:03:32]If someone says, I suspect that Tom and Dick killed Harry, that's a conclusion.

[00:03:45]For you to be satisfied that there is a reasonable suspicion that Tom and Dick um killed Harry, there must be some substantiation before you say Tom and Dick killed Harry. Do you get me?

[00:04:05]>> I understand.

[00:04:06]>> Otherwise, it's a factual conclusion to say that Tom and Harry killed Dick.

[00:04:13]And I suggest to you that this is exactly what you are doing. You are relying on factual conclusions to say that B of section 27 has been satisfied.

[00:04:27]Do you agree?

[00:04:28]>> I agree.

[00:04:29]>> You accept that proposition?

[00:04:30]>> I accept your proposition.

[00:04:31]>> Yes, Mr. >> Thank you, chair.

[00:04:34]And then following that very same approach to all the concerns, I'm going to put it broad. Where in this affidavit do you find any grounds that can potentially get anywhere close to section 27B? And I say I put it that way because I'm I'm talking to a lawyer of of 30 years experience who appreciates that [clears throat] when a statute prescribes what juris jurisdictional factors must exist before certain outcomes are achieved. You would understand that they have to be satisfied independently of one another.

[00:05:18]It's first a the suspicion b the grounds. What where in this affidavit do you find the grounds that would satisfy the requirements of section 27B?

[00:05:30]>> I I have referred to the to those grounds and say that having heard what the chair has indicated there's no there's nothing more than just what he said here. It it is a matter of he says this is what I have I information and documentation is I think the question and and sorry commissioners I don't mean to be asking you all a question but what I'm trying to pose for myself is the question then is is that sufficient for B >> was there a sufficient factual substratum to satisfy B of section 27 That's the question and I think in response to my question you've you've accepted that there was none >> in terms of the factual basis of it.

[00:06:21]>> Yes.

[00:06:22]>> The factual basis that undergurs or supports the factual conclusion.

[00:06:29]>> Correct.

[00:06:29]>> You've accepted that there was none.

[00:06:31]>> Yes.

[00:06:33]>> Do you then accept on that basis because uh my and your engagement has started on the basis of the first suspicion?

[00:06:41]>> Yes. which is state capture. Would you accept that there is no factual basis advanced in this affidavit in respect of all the suspicions as you have identified them? Would that be correct?

[00:06:54]>> That would be correct except he says so of uh >> his conclusions >> his conclusions of I have information uh and I have a I receive information and I also had information. It is on that basis. Yes.

[00:07:09]If that's where we land, would such an affidavit comply with the requirements of section 27? And what would be the consequences of non-compliance?

[00:07:26]So given the questions that that were posed by the chair, it was I I had not looked at it >> and and not only the questions, the questions and the responses.

[00:07:36]>> Yes. So, so in on the basis thereof commissioners, I've applied my mind differently.

[00:07:43]The commission has pointed something out quite differently uh that ought to have been considered. I'm saying in the manner in which I applied my mind at the [clears throat] time based on how I understood section B or what section B to mean at the time. Yes, I agree that it fulfilled that requirement because he had knowledge that he had grounds on which it was based.

[00:08:11]I've I've I've given the answer commissioner. I can't change that answer.

[00:08:16]>> Are you are you are you seriously telling us that uh since what you've been the director since 2022? Is it?

[00:08:24]>> Yes. Are you telling us that since 2022 this is how you've uh understood your legal mandate >> or IDEX IDEX legal mandate?

[00:08:37]>> No.

[00:08:37]>> Did I understand you correctly uh to suggest that you understood that the the the suspicion required has to be viewed sub subjectively. Did I understand you to say that? I'm asking you this because you said you believe that he had the the required suspicion.

[00:09:03]He he Mr. Adams. Did I did I understand you correctly?

[00:09:07]>> Correct.

[00:09:08]>> So that's subjective as opposed to objective. So did you understand the test to be a subjective test as opposed to an objective test for me the grounds on which the suspicion is based is a subjective test.

[00:09:31]>> Uh I will >> no I'm not I'm not going back on the argument. I'm saying in in the way I've applied my mind, it is >> it this is a reasonable suspicion >> that must be born by a reasonable man and person >> person >> by a reasonable person who must have access to knowledge and or information that brings them to that point. If you would allow me to just take it just a moment further.

[00:10:03]>> Yes, >> Mr. Adams is a member of the police portfolio committee. These allegations come to them from time to time. There's active engagement with with the police.

[00:10:18]There are documents that are shared.

[00:10:21]There's information that is shared. I did not take his to be just the test of a subjective mind of just a reasonable.

[00:10:30]>> No, no, no, no. You can't opcate issues in the manner in which you are saying.

[00:10:36]You said you considered the test to be subjective. Now you are saying something that suggests that somehow you also considered it to be objective. You cannot have it both ways. Please advocate Johnson. Let me ask you the question again. Did you consider the test to be subjective?

[00:10:55]>> Correct.

[00:10:56]>> Now what are you saying? You you you've just said something that seems to suggest that you also considered it to be objective. Make me understand what you are saying.

[00:11:06]>> Maybe I didn't express myself correctly.

[00:11:09]I'm saying that the reasonable man test >> the person test >> applies but >> once you see there therein lies the problem. Once you say that the the the test is uh is is subjective, then you look to what was going on in a specific person's mind. That's subjective.

[00:11:35]It has nothing to do with a reasonable person. That's subjective. You cannot have it both ways. Law 101 says subjective, you look to the person's mind. objective. You t test that in accordance with how a reasonable person would view the situation. The two are totally different. You cannot you cannot want to to compound them. You simply cannot you cannot say is subjective but then also refer to a reasonable person test. You cannot I mean even a law student doing first year would know that at a later stage during their first year of uh of legal studies.

[00:12:27]In fact, across across the board within legal studies, you go to your law of delict, you go to even criminal law, criminal law, your culpable homicide, you you you encounter the reasonable test um across the board. So, how you could mix the subjective test and the objective test completely escapes me. So back to my question, you have said you accept or rather you say you say the test under section 27 is a subjective test. Do you stand by that?

[00:13:04]Because if you do, it raises very serious issues about your application of the of the section >> over all these years.

[00:13:15]Are you sticking to your assertion that the test is subjective even though it uses reasonable? Once you have reasonable, that leads to the objective test. You should know that. Are you insisting that the test is object is subjective?

[00:13:31]>> It is an objective test of the reasonable person.

[00:13:34]>> It's an it's an objective test.

[00:13:36]>> Yes.

[00:13:36]>> Yeah. You don't even need to go to reasonable person. reasonable person is implied in the concept of an objective test. So you don't even need to go there. Now if it is objective, did you operate when you looked at this referral, did you operate on the basis that here I'm concerned with the objective test? Is that how you applied it? Because my sense when you responded to uh Miss Silo was that you thought it's subjective and indeed even here until my two or so questions before now you were saying it's subjective. It's subjective. So that must clearly mean that you looked at this referral affidavit on the basis that the test was subjective. Is that so?

[00:14:31]Is that so? I looked at the section 27 on the test of very >> subjective subjective it must be at the time >> it must be because that's what you believed hence your answers on a few good times now during this engagement your answer is that the test is subjective so you looked at this on the basis that it is subject subjective you agree again >> yes >> so that means in your case The word reasonable which appears in so many words in section 27 did not come into the equation whatsoever. Is that so?

[00:15:15]>> It does because >> no it couldn't not if the test is subjective according to you. It wouldn't because once you talk reasonable that takes you to the objective test and you have said in your mind that did not apply. So you looked at this on the basis that it was the subjective test that applied. Correct.

[00:15:34]>> Correct.

[00:15:35]>> So reasonable did not come into the equation to your mind. Correct.

[00:15:41]>> The the the reasonable that comes to mind is as per any person has reasonable grounds to suspect it dealt with the offenses which was part A.

[00:15:51]>> It's there fine and you are reading it fine. But what I'm saying is if you believe that the test is subjective then reasonable on your understanding does not come into the equation because once you bring into the equation the word reasonable that's already taking you to the objective test you have said on your understanding the test was subjective. Therefore, reasonable would not have come into your equation.

[00:16:24]Not on your approach. You must accept that.

[00:16:28]>> I hear you, Commissioner.

[00:16:29]>> Do you accept it?

[00:16:30]>> I accept it.

[00:16:30]>> Thank you.

[00:16:32]>> Thank you, chair. [clears throat] Based on your the engagement you just had with the chair, is is it would it be a fair understanding that all your approaches to all section 27 referrals you've had is the attitude you had to this particular one. So you IDC initiated investigations based on numerous of such affidavits which don't advance any grounds to support suspicions expressed therein.

[00:17:06]Has that been the case throughout the years you've been at IDC?

[00:17:10]>> No ma'am.

[00:17:12]>> And why then do you how how have the others been the other affidavit been dealt with? Have you interrogated their compliance with section 27 before initiating an investigation? Yes, the other affidavits are were were quite different. You you'd also see I think you requested from us the affidavit of a of a different witness. When you read those as well, you can see the the the compliance with these sections.

[00:17:42]Why why didn't you bring to bear that particular need for compliance to this particular affidavit which is dated less than two years ago November 24. Why why did you treat this affidavit as an exception to the rule that you say you had come to apply to all other section 27 affidavits?

[00:18:04]>> So I I I I'm not going back.

[00:18:08]>> Yes.

[00:18:09]>> Okay. Um and and I think that is where my fourth line lay is understanding the reasonable what the reasonable person and went back into subjective. That was that was my error. It it is an error. It it was an honest error. The the test isn't subjective. The test is objective.

[00:18:30]Here I brought a subjective mind to bear on the information the person gave us.

[00:18:37]and Advocate Johnson. That is apparent from paragraph 4 because Mr. Adams says none of these people were suitable to be appointed to the post.

[00:18:48]That's his personal view without grounds to support that.

[00:18:52]>> Correct.

[00:18:52]>> He doesn't even say they did not meet the minimum criteria. They did not have the qualifications. He just says you appointed somebody from BMW as a brigadier and then he says not suitable. Full stop.

[00:19:10]Why are they not suitable? Do they not meet the qualifications? He does not even identify the offense that he suspects is being committed there.

[00:19:22]Because appointment of somebody from BMW on its own does not tell you anything.

[00:19:28]Because my immediate question would be what is wrong with appointing somebody an engineer from BMW?

[00:19:36]If the position required an engineer, what would be wrong with that?

[00:19:41]>> Correct. That would be my immediate question and I would need that to be addressed in the affidavit itself because the entry point according to section 27 is that the affidavit must specify one two three not that it must set out This