Section 27 of the National Prosecuting Authority Act requires that a referral affidavit must specify the suspicion of a specified offense and the grounds on which that suspicion is based. The test for reasonable grounds is objective, meaning it must be based on facts that would lead a reasonable person to the same conclusion, not merely on subjective beliefs or conclusions. When an affidavit lacks factual grounds to support its suspicions, it does not satisfy the requirements of Section 27, and the investigating authority cannot initiate an investigation based on such a referral.
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Adv Andrea Johnson testifies at Madlanga Commission of Inquiry. 22 July 2026.
Added:Good morning all. It's 29 minutes past 9. We are ready to start the day's proceedings. Please make sure that your cell phones are off, that they are quiet on silent, whatever it takes to keep them quiet. Thanks.
Good morning, M. Good morning, Mr. Bjani.
>> Good morning, Advocate Johnson. Thank you.
>> Morning, Chair. Morning, commissioners, and good morning, Advocate Johnson.
Um, Advocate Johnson when we adjourned yesterday, you recall we were having a conversation about the teams within IDAC and um I think you were explaining that you have permanent teams in some instances and I I don't remember whether now that's my deduction that sometimes you have ad hoc teams. But if uh that's my deduction and I have my you know if my understanding is wrong please feel free to correct me. You you you gave an example of the what you call the transnate team.
So we're discussing how they get to be constituted.
Um and hopefully that will lead to the issue of whether or not any particular powers you have are delegated to such teams. If so, which powers and if so further in terms of which prescript such delegation happens. The idea of course being once you have taken us through the permanent teams if you could cover the ad hoc teams and how those are constituted when they are constituted.
Of course the idea being to eventually get to understand and the matter that we colloally refer to as the mule matter where that team falls. Is it a permanent team or an ad hoc team? I I'll leave it to you to to clarify to the commissioners. Thank you.
>> Good morning, chair. Good morning, commissioners. Um, in terms of the teams, there aren't ad hoc teams. Uh, there are teams across the board dealing with different matters. However, what you can do is take people from different teams to constitute a team to deal with a specific matter. Um at the moment they are specific the teams based solely on the many matters we had received from the state capture commission of inquiry, the party commission, the newent commission and so once a team became vested with a matter all other matters related there to invariably went to that team. Um, all prosecutors have the power to institute and conduct criminal proceedings for and on behalf of the state. And so those powers find themselves in section 20 of the NPA act.
and prosecutors are then so delegated to conduct institute prosecutions and matters incidental there to chair as a result of them being prosecutors within the NPA.
In terms of the investigative powers, the powers are derived from sections 29 of the NPA act, the NPA amendment act, which allows for the investigating director.
Um 29A one an investigator may >> subject to the just a correction. It's not of the amendment act that's been inserted inserted into the main act >> into the main act. Sorry, section 29 >> uppercase A of the NPA act, not of the amendment act >> as [clears throat] as it as as you've correctly pointed out. But what it does do is then give investigators powers to deal with aspects of investigation uh subject to the control and direction of the head of the investigating directorate. And so they exercise such powers and must perform such duties as are conferred or imposed upon him or her uh under the act and or any other law and must obey all lawful directions which he or she may receive from a person having authority to give such directions.
and an investigator under subsection two has the same powers as a peace officer or a police officer as provided for in the criminal procedure act. And they therefore in terms of that section have the power to investigate offenses.
Uh the ascertainment of bodily features of an accused. Powers of entry and search of premises.
The seizure and disposal of articles, arrests, the execution of warrants, the attendance of an accused person in court.
um and the service or execution of any subpoena or summons.
And three, an investigator has the same powers as if he or she had been appointed deputy sheriff or deputy messenger or other similar officer of the court. So they do derive uh their functions um from the legislation and are therefore delegated to exercise uh prosecutions for prosecutors investigations with the investigators.
>> What what we see from sub one is investigators exercise their powers subject to your control and direction.
They're not flee agents who go about making decisions, determining what to do uh in a manner or in circumstances where you have no say over what they do and how they exercise their powers. It's subject to your control and direction.
>> That is correct.
>> Yes.
>> Thank you, Commissioner Bal. Thank you, Advocate Johnson. Uh [clears throat] while while we're on those topic of teams uh in the investigation conducted by IDAC that culminated in the arrest of General Kumalo and others uh just so we can bed this one.
What was the constitution of the which team was responsible for that investigation and subsequent prosecution?
And are you able to name the key members of that team be they investigators or prosecutors? We learn at least from Colonel Padiachi that he was the lead investigator. So if you could assist us in populating the rest of the team and to indicate who was the leader of that team. I'd appreciate that. Thank you.
So when when the matter had initially um come to IDAC, the matter was allocated to a we we chose a group of prosecutors um that fell under the leadership um or or the prosecutor was advocate Ram Sami and advocate Joyce Sachuayo.
Um and between between the two who was the lead >> when the matter first started chair uh uh uh it was advocate Ram Sami who led and as the matters progressed each one of them led a matter so that they were able to to to carry the burden of of that matter. So advocate Joy Sachuay is the one who went to court on the uh mole matter. Uh advocate Ram Sami would have been the one who went to court on the first matter which was with uh General Lucaba and others. But they would go to court together um and either or having to deal with the matter as they dealt with it. And then um chair we had um chief perma >> Mr. Bellow.
>> Sorry when you mention a name please indicate what role they played. So Chief Perumal played what role? Uh if you'd just grant me a moment just to get my paper chair so that I'm able to guide properly.
Um the Mr. Paramal is a chief investigator and would have helped lead and coordinate the team of investigators.
Uh obviously under the leadership and guide of the prosecutors.
Uh we had Mr. Rapesu who is also an investigator.
We had Mr. Padia as an investigator.
We had Mr. vessels as the chief financial investigator.
We had >> and and and between Mr. Rao and um Colel Padia, Colonel Padia was on the Muella matter and Mr. Rapeso was on the Luchaba matter or not.
>> That is correct. All right. When they started Yes. Okay. But that that allocation gets determined amongst themselves on who would lead which. But you designate the team to the investigation.
>> No, no, no. I just want to get the facts. I just want to get the facts.
Yes. Yes.
>> Sorry. And then [clears throat] we had um Mr. Patam Lambu as an investigator and in all the matters we do have a project manager and in this instance the project manager uh was Mr. Cl.
There was a deputy director. So sorry apologies. Advocate just that. Did you say Tal L?
>> A L E. Mr. Cl.
>> Absolutely.
>> And and and what role did Mr. was is it miss or Mr. Mambo?
>> Mr. Malamu is an investigator.
>> No, no, no. I heard that is an event but what I want to know is um basically as I understand it there's the Lucava matter there's the MUA matter and I asked you whether between Mr. Raeso and Colonel Perumal one was investigating one of the two matters and you said yes so I want to know about Mr. Lambo where did he fit in?
>> Uh Mr. Lambu as part of that team would have dealt with whatever taskings they gave him, not necessarily only Lucaba and or only the Mole matter. Thank you.
>> The team would have determined the taskings uh and who was best to deal with that investigative task.
>> Thank you. That answers me. Thank you.
>> Any other role play?
>> Uh there was advocate money.
>> Did you explain about M or Mr. project manager.
>> Project manager.
>> Okay. You have you have quite a structure there.
>> And and then who else who else are >> and and and Mr. Manila who is as I indicated yesterday chair all the teams are led by deputy directors of public prosecutions and that would have been Mr. Manila at a stage [clears throat] when the matters first started because Mr. Manilal was um busy in court I think with the transnet matter on her on a uh informal basis. We did have uh advocate Peter Serun uh who would accompany the prosecutors to court uh so that if there was anything he was able to engage the office uh and to indicate if there were any challenges um but >> is he also DPP?
>> He's a DDPP. Yes, ma'am.
I I just want to understand this. I I've always understood DPPs to be attached to and not necessarily part of but uh let me loosely say attached to a a particular court like for example you would have a DPP for the how that in the sense of pritoria high court then another one in Joeberg another one in Tata and so on and so on Um so when you talk about a DPP in this context are you >> sorry DDP deputy director >> also they are DP so Mr. Moon >> Manila is a deputy director.
>> Oh, deputy. Deputy. Now I understand.
Thank you. I did not hear the deputy.
Sorry.
>> When you started, you mentioned the name of Bellow Chan. You haven't mentioned him as you're listing now the specific list. Is there a reason for that?
>> I just want to to check chair. I might have misspoke. I want to see the the the the document in terms of the later.
No, my apologies check. I misspoke it.
He's not in this m in these matters.
>> Thank you.
>> My apologies. He's in the MLA matter.
>> Thank you.
>> Uh is is that the makeup of the team?
>> That is the makeup of the team.
>> I think [clears throat] >> I think the the mention of uh Mr. Beluchan I forget the rank was in your affidavit.
Am I mistaken?
Was it not in your affidavit? Where did I see it? Where would we have seen it?
You don't remember? Oh no. Please look.
Please look.
I'm asking because >> the the the mentioned chair is because he was the person who had gone to Otia to inform General Kumalo that there was a warrant of arrest.
>> Oh, that was the cont >> that was the contest.
>> That was the in your affidavit.
>> Yes.
>> Okay. All right.
>> But that he would have gone there must mean he was part of the team in some capacity. So when they execute um arrests and or search and seizures, different people can form part of the execution teams. They must be put onto the application for the warrant of arrest or for the search warrant. It is there that he comes into play. There were other people as well that were involved that are not involved in the investigation. you can become uh for that specific uh purpose. Uh chair, I just wanted to indicate if you'd allow me, the names that I gave you were the names of the team shortly after we had received the section 27 referral and we had the preliminary investigation authorized.
as the investigation progressed and just before uh the arrests there was an application for a section 281 full investigation in terms of the NPA act. I would just like to check if other names were subsequently added so that the commission has the full ambit of who all other than these were then involved in the matter.
>> Oh please go please go ahead. There are persons that then became uh I I had mentioned uh chairs that it was advocate Manilal. I mentioned advocate Rams Sami.
I mentioned advocate Joyce Lachuo. I mentioned uh chief investigator Peramal, investigator Bellowin, uh chief financial investigator Vayant Vessels, uh investigator Pim Lambu, and then we have investigator Charles Eels, EA Ls, and investigator Ayandamalo.
They came in uh later into the team.
Sorry, can I can I now I'm confused. So, Belchin did become part of the investigation team. He didn't just go to the airport to inform General Kumaro that there's a warrant for his arrest.
>> No, he did not become part of this investigation team. He's not of the people that you've just included him in the postsection 281 process. You say there was a section 281 application for preliminary investigation. You say that and then you proceeded to list who arising from that became part of the team and you say you say else you say and then you said bellowan >> no it's Charles ills and Ayandalo >> you you just you apologies >> unless unless you want you want to exclude him you did mention him >> my apologies I I it is on my document that it is Manila Ramsami Slatuayo Paramal Padia Vessels Mr. Lambo Mr. Eelss and Mr. Balo, >> but you seemed to be reading. You were looking down and you seemed to be reading.
>> I I surely surely I prepared to show this through. Okay. Okay.
>> Yes, that's >> How did you How did you How did you vocalize the name then? Looking down as if you were reading it from a list. How did you come to vocalize the name?
>> I I don't know why I said his name.
>> Okay. All right. No, no, no. It's okay.
It's okay. the the section of your affidavit chair was referring to good morning advocate Johnson. It's paragraph 13 of the original affidavit >> where you list Mrs. Sunnil Bellowen and Ayandam Balo as the investigators >> as the investigators who went to the airport and would have been authorized in terms of the warrant uh for execution.
But why do you call them investigators if all they are doing is execute the warrant?
>> Because that is the their designation chair >> but their role is that of investigators.
Their normal role.
>> Yes. Investigators executing a warrant of arrest.
>> Okay.
>> Thank you. Uh [clears throat] I think from yesterday. So, so sorry, sorry. Before you go on, before I just uh >> you'll remember yesterday when I even express myself in Africa saying that >> dear ML dear Mahar um when you responded um to me about um whether or on whether um Kenel Padia had ever had signed off or received the section 27 referral affidavit.
My distinct impression was [snorts] that uh you said yes he did.
But when immediately thereafter Commissioner Baloy engaged you, my sense was then that you were saying the opposite.
Um I'm not sure as I sit here what your final position is on that. I just want us to put that to bed. Did he or did he not receive that section 27 referral affidavit?
>> Uh chair as I undertook that I would get clarity.
>> Yes.
>> Uh from the team he did have sight of the section 27.
>> He was given >> um >> in the sense of being given >> he was he had sight of it. That's the answer I have.
>> You you see you may you may you may have sight you know in the same way as for example police officers will flesh their ID cards just like that or you may have sight in the sense that you are given the document you read it you internalize its contents. So was he given that document for him to personally read and internalize its contents? So initially he would have had sight of it and later in the year when they gave when he had all the dockets.
>> No explain the explain having sight.
That's what I'm interested in. What do you mean by that?
>> That when the team met they engaged the 27 and he is part of that team.
>> No, no, no, no. That doesn't answer me.
What do you mean when you say he had sight of it? Surely you understand what I what the essence >> he saw he saw the document >> seeing as in here's a document it's lifted and he does see it if it's lifted like this but if it's immediately uh put back on the table it's as good as not having been seen by him. So what do you mean by he did have sight of it? So >> I'm giving you my the the I I'm giving you an explanation I get because I'm not sight of that.
>> That's that's far th that's far you have not explained. That's why I'm I want What do you mean when you say he had sight of it? You you have not explained it.
>> He saw the the document.
>> I want to understand seeing. Is it in the sense of it being fleshed? Here's a section 27 referral affidavit. Boom.
It's gone back to the top of the table and he doesn't see anything. Is that what you mean by seeing or do you mean it was given to him for him to peruse it for himself?
>> He was given the document to peruse for himself according to him and to the team much later. That's all I wanted.
>> Much later on.
>> Sorry. Oh, much later.
>> Much later on.
>> At at what stage was that? At what stage was that? Was this uh before he started uh investigating or was it uh after he had commenced investigating?
If it's the latter, if it's the latter, if it's a latter that would mean he his investigation was not informed by the affidavit. So you say after he had commenced >> after he had commenced >> investigating. So after the section 28 investigation had commenced. Yes.
>> All right. Thank you. That that now that answers me and the clad dear is gone.
>> An apologies but it it is answers I had to seek cuz it's not my direct knowledge. So if I didn't convey it uh correctly I do apologize but it's the answer that I was given.
>> No no as as I said yesterday as I said yesterday um evidence is admissible in this commission. There's authority that says a commission of inquiry of this nature may inform itself in whatever manner it wishes to. The only issue depending on the nature of the evidence would be the property value of such evidence. Thank you.
>> I just did they say exactly when because in your response to the chair you said later in the year. Now that worries me because the arrests were mid year. So if later in the year is after the arrest, that is a problem. So when you say later in the year, what do you mean? Do you mean after June or before June 2025?
>> It would have had to have been before June 2025 because he became the investigator um earlier on which was uh >> in January.
>> In January. Yes.
>> Yeah. I I don't think it's an answer that you or you the kind of question where you answer it would have been you have had opportunity to ask and you were told he saw it later on. You either did ask and were informed when later on or you must still go back and find out when exactly did he he see it because you the way you're answering you answer you don't have personal knowledge of it. So you have to check with other people and I don't want we shouldn't be left with the impression uh that yes he he saw it before the arrest because of how you've answered. I think it's a question that you must verify and come back to us with a specific period.
>> I will do that commissioner by way with the exact answer.
>> Finally, do do you dispute his version when he says before this commission that he did not see the section 27 affidavit?
Do you dispute his version? Do you say he's not telling the truth?
>> I'm I'm unable to dispute his version because he's in that team. That is why I'm saying I have to ask the questions after the fact.
>> Thank you.
>> Um I it it's not my place to say he lied. Um he he would have to he explained as he did. Yes.
>> Thank you. Uh and thank you Advocate Johnson.
You >> Mr. He's still going to be discussing the section 27 notice. I do have a question but if it's a topic you still >> section 27 affidavit >> affidavit yes we're still going to >> All right I'll leave my question for >> thanks commission uh you gave this long it's it's quite a a big team um you you informed of uh I think Ayandalo Charles from yesterday you keep referencing chief parubal chief is not his name is it >> no it is the the rank he is Dylan perma Dylan, thank you. Now, you now have a, as I understand, a group of prosecutors. Well, the prosecutors there two and then a group of investigators.
Who leads then this entire team?
Who's the leader of this particular team?
It is the deputy director of public prosecutions who leads the team and then within the team you will have as you have a chief investigator who will lead the investigative part of the investigations but the the team is led by the deputy director of public prosecutions.
>> Okay. And in this case that would be Mr. Manila.
>> That is correct. That is the lead leader of this team.
>> Yes.
>> Not Chief Perumal.
>> No.
>> Uh because I understood Kenal Padia to refer to Chief Perumal as the leader of the team. Was he perhaps wrong in your understanding?
>> Not wrong. I think as an investigator having the chief criminal investigator in the team, they look to him as the the leader of the investigations. they almost invariably engage with him in terms of the taskings and the activities reporting back and getting guidance. Um the the the everyday investigator functions uh would be dealt with by the chief criminal investigator or a senior investigator as is the case in other teams as well.
>> So then what's the role of the the leader of the team? What is Mr. Manilal's role as leader?
>> So Mr. The Manilal's role is because IDACK has a prosecution-led investigative methodology. Uh they have to sit together to work out what the prosecution strategy is.
Uh what investigations must take place.
Uh they look at the resources that may be required. And so they what his role is is to coordinate and direct the evidence that will be investigation that must be undertaken for the evidence to be collected and the relevant evidence that would be required. Mhm.
>> And then there's that constant two and fro as things come in uh perhaps to to look at the legal prescripts. Have they been met? Are there things that are outstanding? Uh and that is the guidance etc. within the team both of the prosecutors and investigators.
>> So then in this team led by Mr. Manuel who gets to decide whether the section 27 referral is distributed to members of the team who makes that decision is it Mr. Manuelal as the leader or who is it ordinarily it should be the the team leader which is Mr. Manilal, but it would depend on uh who had the document at the time. Uh there's no rules about who gets there's no rules about who gets what and who decides who gets what. Uh I think it's a u >> what's the purpose of being a leader?
>> I I see I see.
>> So sorry you you spoke at the same time.
>> I apologize. Mera was mine. I apologize.
>> I apologize.
>> Yeah. Please finish what you were saying and uh >> what it is is you have the team leader uh who will decide what all must happen.
So obviously invariably it's the team leader who should distribute all the documents. I don't know that there's a decision who to give and who not to give it. It it it works in terms of what is required at the time and who's the person who should have access to the document. you may find that it is a prosecutotorial document and not necessarily something you need to distribute at the time to everybody else. Um so they will work it out amongst themselves uh who gets what when. uh but there isn't a a a prescript or any rule that says or precludes anyone in the team from not having access to documents in an investigation.
>> Okay, let's come back to the section 27 affidavit. Who decides between uh deputy dire between you Mr. Sissoko, Deputy Director Manila, Chief Investigator Perumal. Of the four of you, who decides that Kell Padyachi as the lead investigator will or will not have the section 27 affidavit? Somebody makes that decision. It's not a team decision.
>> No. Once the once the uh document um is after Mr. Mr. Soko and myself have gone through it and we decide falls within the mandate. We give it to the team leader.
Um >> team leader here is because we've got two people now. We've got deputy director Manila and chief investigator Perumal. Who is that team leader?
>> Is Mr. Manila?
>> Mr. Manilal >> is the team leader. Yes. So he's the one that decides whether or not the investigators and when I say Colonel Parachi also Rapesu because you say Rapisu is in the other matter. So it's Chief Manilal who decides >> uh advocate Manilal. Yes.
>> Advocate sorry advocate Manilal who decides whether or not um the investigator should have the section 27 affidavit. Thank you.
>> Thank you. Uh [clears throat] before we leave leave this topic, you you were reading off some documents and you reference a preliminary investigation authorization and the second is an application for a section 28 sub one investigation. You seem to be reading from documents and from my recollection those are part of the documents that we had request requested uh in terms of the subpoenas issued but we unfortunately uh don't have at hand.
as you look at them now, could you provide us the date for the preliminary investigation authorization from the record you have in your hand?
>> What's the date of that?
>> Uh, apologies. Has has the documents not come through to the commission?
>> Is that the lot that was coming in through this morning?
If if it was coming in through this morning, it has to make its way through the system. So, it will eventually get here. That's my Mr. Mr. Bani, are you able to assist on this?
>> Yes, Chair. Um um as I understand it, it is part of the documents that were made available this morning. It may very well be that it is yet to find its way to my colleague, but as she says, there is a system and and and maybe it it has bottlenecks here and there, but it's part of those documents. Yes.
>> Thank you. Thank you.
>> Thank you, chair. Then we shall be sorted by tea. They'll be printing. But in the in the interim, can you give me the date for the preliminary investigation author authorization?
>> 6 December.
>> Yes.
>> Uh 2024.
And for the application for a section 281 investigation >> would have been 30 30 May 2025 >> 20 >> 25.
Thank you.
Uh this detail and this structure helps.
Now, we've been we've been talking a lot about the section 27 referral uh in the mug matter.
This is ad file 2 page 512 and CJC 373.
373. Page 512 and I need you to keep open that file for the moment. There's another document I would like us to have at hand. It's from General Muanazi's annex MK1616.
Thank you. 16 [clears throat] This is the information note.
>> Uh MK MK1616.
It's a letter from ad uh from the office of the minister of police. Yes. Sorry, I was in the wrong table.
>> Okay, thanks.
>> Chair, I think uh we have a spare copy of of that. It's it's being available to you now.
MK16 would start at page uh pageinated 310 in that bundle.
Thank you. MK Let's start with MK16. Uh if you look over Leaf, it's dated the 11th of November 2024.
>> Correct.
>> Yeah. And if you just like cast your eye at page 516 of the file three that you have opened the referral that is dated the 21st of November 2024.
[clears throat] So let let's follow the events sequentially and I think you did reference MK this document that is marked MK16 which is a letter but signed by it would appear the chief of staff ministry of police Mr. Gabinde and it's directed to the investigating director yourself [snorts] and it shows an as a heading referral and it request for investigation in terms of section 27 of the national prosecuting authority act act 32 of 1998 read with the national prosecuting amendment act act 10 of 2024.
You confirm receipt of this letter >> of the MK16.
>> Yes, ma'am.
>> Yes.
>> Um, [clears throat] and this letter purported to refer to your office complaint by Mr. Adams, a member of parliament, and concludes over leaf with the following statement. Honorable Fadil Adams was advised by this office to await your decision in this regard.
>> You see that?
>> I see.
>> Now, um kindly inform the commissioners what you did upon receipt of this letter.
This letter came came to us by hand and it didn't have any attachments to it.
I looked to see if we did even reply to it. I I can see the letter come in but we don't have a response uh to the ministry acknowledging the receipt of this letter and it is afterwards that we get we got an envelope that was delivered to the office with the 27.
>> No, we'll get to the 27 for the for the moment. Let's let's stay with this letter.
>> Yes, ma'am.
>> Um did you act upon it?
I sorry I didn't hear.
>> Did you act upon the letter? There is a specific request there to look into the complaint by Mr. Adams in respect of the cases listed there.
And as I say at the end to to inform Mr. Adams of your decision, Mr. Gabindi says honorable Fadial Adams was advised by this office to await your decision in this regard. So I want I want to know have upon receipt of this letter what then what steps did you then take? You have clarified that you cannot find a response to this letter nor an acknowledgement of receipt >> and and could not act on this letter because there were no attachments to it.
No, what you're being asked is that last paragraph says uh honorable Adams was advised by this office to award to await your decision in this regard. And the question is having received a letter from the ministry. What did you do? Not not did you institute an investigation?
Was it a letter sufficient to act on it?
That's not the question. The question is you have correspondence directed to you.
you you I I assume you do not just file away letters when they come in. Uh especially where you are told that the complainant is awaiting to hear from you. The question is what did you do?
Either you did nothing and filed this away or you did do something about it and you have to say what did you do what I would have done and that is why I'm saying I cannot find it. we would have acknowledged receipt of the letter and that is as as far as I would have been able to take it because there was nothing to do. There wasn't anything attached to this letter for me to be able to act upon it.
>> That's not an answer. Surely that's not an answer. Advocation you cannot just acknowledge receipt and then keep quiet. How will the ministry know what your issue or problem is? Why not raise it with a ministry that I'm not able to do anything with this because as you put it there are no annextures to to your letter. Why do you just acknowledge and then fold your arms and do nothing? That uh I that escapes me.
>> Uh not do nothing.
>> I you've just told us sorry. Thus far you've basically told us that you did nothing. All you did was to acknowledge receipt of the letter.
>> Yes.
>> What did you do then? If you did do something, what did you do?
>> I honestly cannot remember. I I have to cast my mind back to in the acknowledgement of the receipt of the letter.
>> I I speak under correction. I'm not sure that I asked and indicated that there was nothing attached to this letter because a few days later by way of envelope we get the section 27.
>> He he would have been told to file a section 27. I mean he didn't make it up.
He didn't wake up one morning thinking oops I have to put in a section 27 affidavit. So someone would have advised him to to file that. That's why it's important to know what did you do? What did you say in that acknowledgement of acknowledgement of this letter? You must have said something before we get to you then received an envelope >> and the acknowledgement would have been typed from an internal computer. Surely you have that letter in your possession or a draft of it somewhere.
in the computer and it can be made available to the commission.
>> We we have looked for it. I'm going to ask them to look for it again because I I also have to apply my mind. I can't that is why it sounds like a fumbling answer because I can't recollect what I would have written over and beyond. We acknowledge her receipt and in all likelihood would have alluded to the fact that there's nothing there because it talks to this envelope coming with the 27 uh a week later.
>> But you you see uh speaking for myself, Advocate Johnson, the answer you've just given now creates an impression that a draft of this letter was deleted.
That's why it's not available because you use a laptop to draft a letter and then your PA I assume would have then either printed it from that computer or emailed it to you and if you are happy with it you would have appended your signature and it would have gone to the minister's office. Now if you're saying we have looked and it's not there the question is what would have happened to that draft unless somebody deleted it so that it is no longer available and maybe to to correct what you've said this letter doesn't say here's a copy of an affidavit it says a copy of a written correspondence addressed to the minister so if it lacked anything. It was the letter which Mr. Adams addressed to the minister, not an affidavit.
You still have you I mean you are on you're not on suspension. You have your laptop. You are able to check this and give us a copy of your response. Right.
>> Correct.
>> Okay.
>> And I will look for it again. I will have the PA look for hers again. We did try that exercise or we did do that exercise not try the exercise but if you give me till lunch today uh we'll go back uh I'll ask the IT perhaps um um advocate maga if we could just engage with the IT to check through the email correspondence of both myself and my PA.
uh it could have been I drafted a response and emailed to her or she would have and emailed to me so that we are able to give the the commission a full account >> from from from what you're saying. So it means the letter should be in both your inboxes >> should >> your your PA's uh may on your side if you if you sent to her it will be on your sent items >> and then in her inbox if she drafted it and sent it to you it's in her sent items and in your inbox.
>> Correct. So again going back to what commissioner Kumalo said um it's unlikely that it would disappear no >> on on both ends that's just unlikely. Do you agree?
>> Correct. And if I may just one point of correction is there are times as well chair where I would type a document print [clears throat] it myself sign it and then hand her the hard copy to distribute just for purposes of clarity.
You are you are correcting yourself because what I suggested to you now was based on what you had said which was you sending or she sending or or or he because your PA could be could be a he or she. Yeah. So I was basing it on what you had said but you are correcting yourself and now saying it could be on one end only.
>> Correct.
>> All right. Okay.
Sorry, there was a question by Commissioner Baloy that got lost in this engagement, which was how else would Mr. Adams have known to contact IDC and prepare section 27 affidavit. Did Ida contact Mr. Adams and say we need an affidavit from you? Because this is 13 days later. So the minister's letter is 11th of November uh on the 21st. So it's about 11 days, 10 days. Mr. Adams then has this affidavit. I don't know how it gets to IDC. But how did Mr. Adams know that he must do a section 27 affidavit for IDC?
>> Mr. Adams would have had to be contacted by IDC.
>> So following upon receipt of this letter, IDC contacted Mr. Adams.
>> IDC would have had to have contacted him. Yes.
>> Who did that?
Who who contacted Mr. Adams?
>> In this instance, >> it would have had to have been chief criminal investigator PMA.
>> Um, you you do you know for a fact or don't you?
>> I did. That's why I say it would have in all like you would have been chief investigator. You don't know for a fact?
>> I don't know for a fact.
>> But why do you think him?
>> Uh because later on um the engagements with Mr. Adams were with Mr. Pamal and the other investigators. We would not have then sent people that have not already engaged with him. It >> Sorry, Miss We indeed chair. No, >> it was it was your question. We took over. Sorry.
>> No, no, it's a It's following these are follow-up questions to your question I had asked. So it's very they flow from the question. I'm happy. Please go.
>> Please go ahead. Please go ahead.
>> Can I ask on the back of that the the your response the way that I've understood your description of how your processes work. It's you get a section 27. You then discuss it with m you you take a view. You then discuss it with Mr. Susoko. You give it to him to then take his own view. the two of you agree something and after you've agreed that the there is an offense in this referral you then refer it to the team right that referral to the team who in particular does it go to from you and Mr. Susoko, who does it go to when you say we then refer it to a team?
>> Um the the office would usually call the project manager to to hand over the document. Um and then it goes then into the team for for the uh deputy um and all of them to to work through the document.
>> So is Mr. Tal a forever standing project manager? At that point it's you and Mr. Susokco. When does a project manager get appointed to be responsible for this?
Now >> it depends which team you're sending it to. They have standing project managers.
>> So there was already a team to which you referred yours and I'm going to call you the intake committee for now until you have that discussion with Miss Silo and the rest of us. But for purpose of our discussion, you are the intake committee. You've made a decision.
Is there a project manager already at that point or do you then proceed at that point to appoint a project? I'm I'm just trying to understand uh how you then process it from that point and and we'll come back to the question about who contacted Mr. Mr. Adams. Um there are project man there there are four project managers in the office. Um and [clears throat] when you allocate a method to a team that team already has an existing project manager. So it is the project manager may have been there because of other matters and like I said for example that team deals with the transnet matters under Mr. Manilal. So when we gave the matter to to Mr. Manila, the project manager who's been in that team is Mr. Cl.
>> Okay. Now if if Chief Perl is the one that contacts Mr. Mr. Adams um following this letter on on where does he get that from to this is Chief Perumal where does he get it from that he must contact uh member of of parliament Adams because at this point there's no section 27 yet that has come in so that process of you and Mr. Mr. Soko hasn't yet happened. Nothing has yet been referred to a team or to a project manager and team. How does Chief Perl come into it after you've received MK16?
>> Um I speak under correction when Mr. Susoko is not there uh for me to ask or request that he engage uh with somebody. Uh I usually it would depend who's acting in his place and I need to check if the if Mr. Pamal was acting at the time or we also have chief criminal investigator Landanda Boy uh to whom we would allocate. it might be on that basis that he was therefore approached to deal with this matter because we would need an investigator uh to be able to interview um u Mr. Adams.
>> So for for Chief Paramal to have been the one of Mr. Boy for that matter whoever you have appointed but for now you say you think it must have been Chief Perl for him to contact Mr. Adams following you receiving this letter because at that point that's all you have >> you would have had to say to him I've received this letter contact um Mr. Adams >> that is correct >> okay thank you >> and thank you commissioners >> so at that stage neither Mr. Cisop or whoever else was involved. It was you and you directly said to Mr. Perum, contact Mr. Adams. No involvement of Mr. Sissoko.
>> No, because we haven't had the 27 years.
>> All right. All right. I'm asking to be sure because earlier when the same question was asked, you mentioned Mr. Sissoko, you mentioned somebody else and uh that just confused issues. So, all right. Thank you. I understand.
>> Thank you, chair. So then just so we we we understand where we at, you've now received MK16.
You indicated that you did not uh refer to an investigation or you know because it did not have attachments.
Um but we know from the letter itself that it had written correspondence addressed to the Minister of Police.
What attachments did you consider were lacking that made it the absence of which made it difficult for you to act on this letter?
>> I only have these two pages.
>> Ma'am, >> I only got these two pages.
>> Let's go to that the very letter. It it reads in the first paragraph attached here to please find for ease of reference a copy of written correspondence addressed to the honorable minister of police honorable Senzum Tunu by member of parliament honorable Adams.
>> Yes.
>> So you say didn't have >> I only had these two pages that you have here. Page 310 and 311.
>> Please say that again.
>> I only had these two pages.
>> M 310 31 310 and 311. Yes. So um did you go back to Mr. Gabinda and say uh you forgot to attach the written correspondence between the Minister of Police and Mr. Adams which you had kindly offered for ease of my reference.
You you didn't do that. uh that is why I'm saying we need to look for the response to this letter uh where I would have acknowledged the letter and in all likelihood would have asked for that which is short attached please find a reference I would have asked for the written correspondence >> but definitely you recall you didn't have that correspondence attached >> I recall I didn't have that correspondence >> you then as as you testified you instructed uh chief peral to be in contact with uh Mr. Adams to obtain um section 27 affidavit.
>> That is correct.
>> Now I want to suggest to you so effectively IDC solicited a section 27 affidavit from Mr. Adams.
I tell you now when you look okay when you look at the 27 we didn't take the 27 they would have contacted him and I guess this is what we got. I I I speak under correction.
Mr. Pamal would have to answer what he got from Mr. Adams, but what we got was a 27 dated the 21st of November 2024.
>> That's fine. Um, my question is that document you're holding in your hand, IDE solicited it from Mr. Adams. You received a letter from the minister, you then directed Mr. Peruml to act on that and contact Mr. Adams and ask him for his ask him. So, you solicited an a section 27 affidavit from a Mr. a wouldbe complainant.
>> I don't agree with the solicited.
>> Ma'am, >> I don't agree with solicited. We would have asked him because you see I I'm going into the detail that's not mine and not in my head and I don't want to sound >> It's yours. It's yours. Advocate Johnson.
You are the one who gave an instruction to Chief Perumal to contact Mr. Adams.
So Ms. Silo's question relates to that.
That has nothing to do Mr. Perumal would then have been the actor actor on your instruction. That's where the question is. It has nothing to do with what Mr. Perumal then did down the line. So please please do not deflect the question and refer to to to what Mr. Perumal would have done or not done. Can you please respond to the question?
>> Then we would have obtained the statement >> at your instance. That's the substance of the question.
>> That is correct.
>> That's that's that's that's what Miss Silo means when when when she says to you. So you solicited the affidavit because what came out of your instruction that please contact Mr. Adams was the submission of the section 27 affidavit.
So it's on that basis that MO is suggesting to you solicited that affidavit. Do you now agree?
>> I agree.
Um, as as you sit here today, is h is that appropriate of IDACK to be soliciting complaints from members of the public on the basis of which the IDC initiates investigations?
No, we're not supposed to solicit. And that is why I'm saying the engage I tell Mr. Pama to engage Mr. Adams. I don't know if this was a prepared affidavit already. It was to say to him we received a letter from the minister we are engaging you. So whether this was already prepared or not at the time we got this affidavit. Okay.
So then you recall when we're looking at MK16 the last sentence in MK16 before the signature by Mr. Gabind states, "Honorable Fadial Adams was advised by this office to await your decision in this regard. So it's fair then to conclude that your decision that you communicated to Mr. Adams is prepare an affidavit section 27 affidavit and submit to IDC. That's what you must have advised Mr. Adams based on your testimony."
>> That is what the advice would have been.
>> Okay. just on something you you you you said in response to um Miss Silo's previous question, you touched on the possibility that not stating it as a fact uh that the affidav you do not know whether the affidavit had already been prepared >> at the time of your instruction to Mr. Perumal. Did I understand you correctly?
>> That is correct.
>> No, that's not a fact. look at that uh that affidavit um is dated 21 November 2024.
>> Yes.
>> And the minister's letter >> is the is the 11th of November 2024. So there was no prepared affidavit. I thought I should just put that out of the way.
That's something you must accept.
Correct.
>> I I hear what the chase said.
>> Yes. Yes. All I'm saying is let's forget about the possibility of an affidavit that could already have been in existence uh between the time that you got the letter from the minister and the time that this affidavit was eventually submitted to to IDC. That's not a possibility. We do see the correct facts here. Thank you. So the upshot of all of this is that the referral to IDC was by the minister's office and following that referral ID then made a decision to engage with Mr. Adams to obtain an affidavit from him.
>> It follows commissioner.
>> Yes.
>> And [clears throat] thank you commissioners.
I suggest to you that you did that because you knew as ID that the minister's letter does not constitute a section 27 referral and IDC decided to cure that deficiency.
If we look at section 27, it says the complaint must be on affidavit. So you knew that the minister's letter would not be sufficient to trigger your mandate and you sought to cure that shortcoming.
>> I'm trying to flight section 27 if you have it close by. There it's on on the screen you see it. Section 27 states, "If any person has reasonable grounds to suspect that a specified offense has been or is being committed or that an attempt has been or is being made to commit such an offense, he she may report the matter in question to the head of the ID investigating directorate by means of an affidavit or affirm declaration.
You see that and and you're quite familiar with section 27.
you know, please articulate your response to things.
>> Uh so because you you you read the minister's letter and you saw the difficulty that it would not trigger uh your power to investigate, you contact Mr. Adams through Mr. Perumal to cure that problem and to provide a section 27 affidavit.
>> Yes. as the minister refers uh uh referral and request for investigation in terms of section 27 but there isn't a section 27 there and so by virtue of what you are saying we had to go ahead then and get a section 27 >> why >> because there is no 27 that is referred to us through that letter please go to MK15 and look at the correspondence that I understand that you received attached to the letter uh by Mr. Gabinde and MK15. I would like to refer you to page 28.
Let's start at 282 but then um in particular I would like us to have regard to 283 and 284.
From our records, we are aware of a a letter to and no, sorry, an email to the minister at the bottom, starting at the bottom of page 283 of MK-15 and from Mr. Adams if you look over leaf at 284 and in that email having stated what his issues are at five he states I urgently and humbly ask for the minister to intervene and ensure the integrity of investigative process is maintained to ensure a fair and just outcome you see that do you see why I'm reading yes and And if we go back to 283 um then we see communication from Mr. Gabinde to Major General Sabula [clears throat] um referring this complaint and requesting that a report be filed with the minister or the minister's office by Monday the 4th of November.
Now if Our the email at page 283 at the bottom from Mr. Adams reflects a complaint as reflected in sub two at the bottom of the page. He said to minister of police one I have opened cases. You see that? And if we go to two, he says, "I was told that the dockets were intercepted."
And then in his quest for justice, he says he traveled to open dockets.
However, I've also been notified that the police department has followed the same modus operandi as the Western Cape and is interfering in the investigative process.
I urgently and humbly ask for the minister to intervene and ensure the integrity of in the investigative process is maintained to ensure a fair and just outcome.
So my understanding of this email is what Mr. Adams wanted was that the investigative process of the cases the dockets he had opened um the integrity of that process be maintained >> correct >> you understand you have the same understanding as well now assuming for a moment that this is the communication that was attached to MK16 the letter addressed to you [snorts] what what in this would trigger your mandate Remember in your affidavit you set out your section 7A um of the NPA act you do so at paragraph 8 page three of your first statement and you you you do quote the act that your mandate is to investigate serious high-profile or complex corruption commercial and financial cases is that's sub A sub B relating to additional related offenses or categories of offenses including and then it lists and then um relate and at C relating to additional related statutory offenses or categories including contravention of specified acts.
If we take MK16 and we take this communication that we I suggest was attached to that letter.
What in these documents triggers your mandate in terms of section 7A?
Does it do these documents reflect a serious a highprofile or complex corruption or a serious high comp highrofile or complex however that is read? What what what what about the contents of those documents? Bring this within the mandate of IDAC to justify your initiative to direct Mr. Perumal to go obtain a section 27 affidavit.
>> If this was in fact the document that was attached, it doesn't trigger.
And if that document wasn't attached, it's even worse because the MK16 itself does gets nowhere close to section 7A on its own without this communication.
The so I there's there's >> the the two possibilities. If this was attached, >> the only time that it would have triggered anything um however I have been notified that the heart has followed the same as interfering in the investigative process that might have triggered looking at whether or not there was defeating. But I can honestly tell you I can't recall this document. So it cannot have triggered IDex mandate.
>> Are you referring to to the emails? Now when you say this document, are you referring to MK15 the emails?
>> Uh the 283 and 284 >> pages 283.
>> That's the emails.
>> The emails. Yes.
>> You are referring to a document singular.
Miss Silo's question as I understood it was referring to both the emails and MK16 which uh is the letter from the minister. So don't uh don't leave that out. What about that letter?
From that letter, do you see anything that triggers IDEX mandate?
>> Sorry, let me just go back at you. I don't have it straight off my Jay, if that that was attached and when you look at paragraph Um >> two >> starting with what was >> allegations?
>> Yes. contained therein implicate very senior members of the South African Police Service and are viewed in a serious light and case dockets were registered as and due to the nature of the allegations uh made by the honorable Adams which is deemed to be quite sensitive and which contains allegations of criminal conduct. The office requests the investigating director to consider investigating the same.
>> That says nothing. That says that says nothing. altogether. We do not even know what those allegations are whether serious or not.
That's basically says nothing. And if I were to refer you to one of your own statements, I think that's your second statement where you were required to uh respond to issues about the docket which you are alleged to have shared with General Khan.
You had in respect of that issue the ability to say this is vague. It doesn't say when. It doesn't say by whom.
doesn't say and you went on and on to demonstrate that it was vague.
That same thought process by you ought to have applied here as well. There are so many wise, how, by whom, when, about what exactly? There are so many of those. If you are able to apply that thought of process or that kind of reasoning, why did you not apply it here? It's on that basis that I say this says nothing at all. So by parity of reasoning in accordance with your own reasoning when you concluded that what you were being asked was vague, why did you not see this as vague as well? It says nothing.
I suggest to you, do you agree or not?
It may say nothing in there. It refers to the dockets.
>> So you are you are you you are happy that it says nothing.
>> It doesn't make out any allegations.
>> Exactly. Exactly. Now go to section 32 of the NPA act.
And please tell me when you are there.
32 32 32 I am the chair.
Do you see that uh in subsection one that is section 321 um there it's stated uh how you are to carry out your functions and uh that is amongst others without fear favor or prejudice and what I want to emphasize here is without fear and then in subsection two that is section 322 two, the oath of prosecutors is uh actually set out there. You do see it. Eh, >> I see that chair.
>> It also captures the same um words without fear that is you will exercise your functions as a prosecutor and you happen to be a senior one at that. So you will exercise your functions as a prosecutor without fear, favor or prejudice. Again, I emphasize without fear.
Now, if you accept as you have just done that there was nothing whatsoever in the minister's letter, what stopped you from writing back to the ministry and saying, "We do not have a section 27 referral.
Therefore, we cannot do anything about this." And you did not even have to go to the content of the letter.
But because there was nothing nothing in the content of the letter that should also have given you comfort as a prosecutor that I do not have to follow follow up on anything here because there's nothing you have accepted that there was nothing. Why did you not write back to the minister and say in the absence of a section uh 27 referral?
We as IDK cannot do anything. So that it would then have been the ministry that saw to it that a section 27 referral was placed before IDC. Why did you not write such a letter? Were you fearful of the minister?
>> Not at all. And that is >> why why why then did you not write such a letter?
>> I said chair >> sorry sorry you spoke over me. Why then did you not write such a letter?
>> That is why I said chair we'd like have to look for the letter that I we the response what did I write in my response to the minister? But surely surely sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry sorry but surely that letter could not possibly have said minister we are not going to do anything about this because there's no section 27 referral because that would have been at variance with or at odds with you instructing Mr. Perl to follow up with with Mr. Adams. So that letter, even if we were to look at it, it's not it's not likely to have said what I'm suggesting you ought to have done. So do you think that letter is going to assist you?
>> I'd have to look at the contents.
>> Do you think it's going to assist you as you sit there? Seriously?
Do you think it's going to assist you?
>> Not at all.
>> It cannot possibly do so. it it cannot possibly do so because such contents would have been as I say at odds with the instruction you gave to Mr. Perum.
>> You agree?
>> I agree chair.
>> Thank you.
>> Yes ma'am.
>> Can I just follow up on that? Um and and I want to make a proposition to you.
>> Sure.
>> That when you look at the letter from Mr. Gabinde as you agree it says nothing. Um it says I attach a copy of written correspondence from Mr. Adams to the minister not to you. And then it gives a list of ca of cases. It says allegations contained therein implicate very senior members of the subs and are viewed in a serious light and case dockets were registered and he gives you those case dockets. And then he says due to the nature of the allegations made by Fidil Adams, honorable Fidil Adams which is deemed to be quite sensitive and which contains allegations of criminal misconduct. This office request the investigating director to consider investigating the same. And then the last is you will advise him what you're doing. You'll advise Mr. Adams. Now for you, the proposition that I want to make to you is for you to instruct Chief Perumal to speak to to Mr. Adams, you must have had sight of these emails for you to form a view that they there is possibly a matter that falls within our section 27. You must have looked at MK15 282 otherwise your decision doesn't make sense that just on MK16 on MK16 you say to Mr. Perumal speak to Mr. Adams when 16 says nothing as the chase says it doesn't allege what crime it speaks about allegations are sensitive doesn't tell you anything so you don't know whether they're talking about theft of a notebook on MK16 could have been anything so it cannot be and I would be surprised if you acted on MK16 to say to Mr. Perum speak to Mr. Adams so that we can get an affidavit from him.
That conduct of yours to say to Mr. Peruml uh to Chief Perl, speak to Mr. Adams makes sense only if you've seen these emails and you've seen that there are allegations of interception of of dockets as you were starting to say that you the email seems to speak to corruption of sorts. You have to have seen this.
That that's my proposition to you that you must have seen these emails by the time or before you spoke to Perumal and that's what informed you saying to Mr. Peral speak to Mr. Adams. What do you say to that?
>> I can't disagree with you commissioner.
>> Thank you.
>> Sorry. Sorry. Let me just follow up on u a response you gave when I when I engaged uh you. So in the end you accepted that you could not possibly have written a letter to the minister saying um there's nothing we can do in the absence of a section 27 referral. So you accepted your letter. Could not possibly have said that.
I asked you uh did you act in the manner in which you did because you were fearful of the minister and um I thought your response was in the negative.
Correct.
>> If you were not fearful of the minister, why then did you act? What motivated you to act in circumstances where there was nothing in the content of the letter from the minister. You were not fearful of the minister as you suggest but you still went ahead regardless and gave the instruction that you gave to Mr. Perumal. What motivated you?
What was the motive behind your action?
If it was not fear of the minister, what then was the motive for you to act in the manner in which you did?
>> Is to f is to follow up on is there a section 27 is is is that all you asked Mr. Peral to >> that is all because there's a refer reference to a section 27. There is no section 27. Mr. Perma to contact Mr. Adams to find out if there's a 27 or to get a 27.
Did you say this before or are you saying it for the first time? If you did say it, I may have uh uh not heard you.
What I'm referring to uh as to whether you are mentioning it for the first time now is whether your instruction to Mr. peral was for him to find out if there was a section 27 referral. Did you say that before?
>> No chair. I didn't say that before.
>> You are saying it for the first time now. I would have expected you to say that much much earlier, but I will leave it at that.
>> I I I'm I'm I'm reading again.
>> Sorry.
>> Sorry. I was reading again and and and going through what it it passed.
>> Okay. Thank you. Thank you.
>> Thank you, Chair.
>> Okay. Sorry. One last one. Do you see that as far as the minister is concerned his letter was the section 27 referral because if you look at the heading they say referral and request for investigation in terms of section 27. So as far as the minister was concerned this is the section 27. So the appropriate answer from you would have been this does not comply with section 27. That's the end of the story.
In fact, to add to that, the nothing in this letter leads you to Mr. Adams. As as Commissioner Kumalo says, it is the ministry that is referring and purporting to refer in terms of section 27. And if you were going to ask for a section 27 affidavit, it is from Mr. Gabindi that you ask for because he's the one that's purporting to refer you you you it doesn't direct you to Mr. Adams. The complaint has been laid with them and Gabind says I'm lodging a section 27 um complaint and you have no business at least on the basis of this letter to to to to go to Mr. Adams for a section 27 affidavit.
You go to Mr. Gabindi for a section 27 affidavit. You say to him, "This is not a proper referral. If you want us to investigate in terms of section 27, as Commissioner Klo says, give us an affidavit."
>> I read it differently, commer, >> how do you read it differently?
>> It it says referral and request for investigation in terms of section 27.
Um and he does make reference to the honorable Fadil Adams. We don't have anything from Fadil Adams. And so the request to Paramal to get a section 27 from Fadil Adams is based on the referral and request for investigation in terms of section 27.
>> Mr. Enabinda is asking you to investigate. Mr. Adams is not asking you to investigate. He has not communicated with you. He hasn't uh even on the version which you on on the proposition that I made to you that you must have seen the emails that he sent to the minister. Even on that he's not directing anything to you. It is Mr. Gabindi. He raises his complaint with the minister. That's what he does.
>> Yes.
>> The minister's um chief of staff lodges with you a complaint and he calls it a section 27 complaint.
The only reference he makes to Mr. to to to Mr. Adams is to say we've received the minister has received a complaint from Mr. Adams. Please investigate and I refer this to you in terms of section 27. So the person that must give you the affidavit is Mr. Enabinde. And and it's not apparent why you thought that this is a complaint to IDC from Mr. Adams because it's not a complaint from Mr. Adams to IDC at this point. It's not >> I I see where you going to commissioner.
>> It's it's like this advert.
>> No, no, no. Sorry. Do Do you agree? Do you agree?
>> I agree with her interpretation. Yes.
>> Thank you. Thank you.
>> It's like this. So, Mr. Adams writes to the minister's office. He's unhappy about the four dockets and he asked the minister's office to intervene. So the minister's office has at least three choices.
One is the inspectorate, the other one is IPID and the other one is IDC. So they have those three. So far you are with me? You agree?
>> I agree.
>> Based on the nature of the allegations, as vague as they are, they have those three options.
The minister's office then picks one and they say we pick IDC and we will do a referral to IDK in terms of section 27 of the NPI act. It's not Mr. Adams who says I choose IDC. It is the minister's office based on what we see in this letter.
Do you agree so far?
>> I agree so far.
>> Yes. And they say as far as the minister's office is concerned, the allegations in the correspondence by Mr. Adams, they regard them as quite sensitive. That's the minister's office. And they contain allegations of criminal misconduct.
That's the minister's office. They then say this office, that is the minister's office. This office requests Advocate Johnson to consider investigating the matter. That's the last paragraph on 310.
So do you see that it refers to this office being the minister's office? Do you see that?
>> I see that.
>> And it is the minister's office that is asking IDC to investigate.
>> Correct.
>> Yes. So the request is by the minister's office and they say Adams was advised to await advocate Johnson's decision a decision on the request by the minister's office.
>> Yes.
>> Do you accept that? Yes.
>> Thank you, Commissioner. If I couldn't add [clears throat] and what the minister's office requested IDC to investigate is the alleged interception of the dockets. That's it.
Not the allegations set out in the respective dockets. That was never the request to you. Do you accept that?
>> I accept that.
So if you understood the request to be an investigation into the alleged interception and interference of dockets opened by Mr. Adams, that surely should have been the confines of your investigation.
whether or not dockets were opened and intercepted, whether there has been interference with the dockets regardless of the content of the dockets because otherwise you would have been investigating what you were not requested to investigate. Would you accept that your your investigation would have been that narrow would be looking into the the interception only >> in terms of this letter? Yes.
>> Yes. So [clears throat] we then uh if if we look at the emails at 283 and 284 that is consistent with what Mr. Adams complains about in his emails to the minister. It is the interception.
After tea, perhaps you will shed light on having solicited the section 27 affidavit as IDC did. How do we end up with claims of uh Kumalo Lu Shaba Madono syphony money from the secret account fund with cover ups of General Luchaba's uh incident with the appointment of a lady uh working at BMW in a sensitive post? How does that fit into the request specific request made to you of interception? Why is um Mr. Adams's affidavit not confined specifically to the complaint he had laid with the minister?
Is it was that at the instigation by IDC? It can only be at the instigation of IDEX. So there's Mr. Adam's complaint of interference and then there seemingly is a parallel investigation attached to that complaint initiated by IDC. Is that where we are at?
>> I'm going to come back to you after tea because I'd have to speak to Mr. Pamal about what he spoke to Mr. Adams about and how we arrived at this.
>> No, no, no, no, no. You will come back >> at at at that point perhaps. Let's take the the adjustment and come back at 11:35. Thank you Jen.
It's 11:34.
We are ready to resume. Please make sure that your devices are quiet. Thank you.
Yes, Miss S.
>> Thank you, Chair. [cough] [clears throat] Um, Advocate Johnson, when we broke for tea, we had established that the minister's office complaint um was based in turn on Mr. Adams's complaint of interception of his dockets.
We agree that >> correct?
>> Okay.
Uh we know that upon receipt of that communication from the minister's office with or without an extras, you then instructed uh Mr. Perl to obtain a section 27 affidavit from Mr. Adams.
My question was if the complaint was interception of the dockets not the content of the dockets you m you by you I mean IDC must have instructed Mr. Adams to include in his section 27 matters that that do not constitute interception and you indicated that you needed to talk to Mr. Peruml.
I take it you've had a chance to and are able to shed light on how we end up with a section 27 affidavit reading as it does inconsistent with the complaint laid before IDC by the minister's office.
Uh commissioners I I did call Mr. paramount during the uh during the tea break. Um and and I give feedback as follows.
The referral and request for investigation in terms of section 27 in the letter by the minister referred to honorable Fadil Adams and referred to dockets.
The ID asked Mr. Pamal to contact Mr. Adams to find out if he had a 27, which he did. He called Mr. Adams to indicate that IDACK cannot assist you in the absence of a section 27 referral.
Mr. Adams said, "I have dockets opened already that make out allegations."
Mr. Paramal advised him that we cannot just take those dockets in the absence of a section 27.
He told him to see a legal person and look at section 27 and if he was of a mind to to then refer a matter in terms of section 27.
Accordingly, there is a 27 dated the 21st of November signed in the Western Cape that was compiled by Mr. Adams without IDAC [clears throat] which he sent and which has the detail it has the complaint the only complainant as at the 11th of November was the office of the minister and that complaint concerned interception of dockets. So the complaint itself does not concern itself with the contents of the dockets.
It's only the act of interception.
Do you agree with me?
That is what was communicated to you by the minister's office on the 11th of November in terms of an extra MK16.
>> I beg to differ if I could explain.
>> Yes, please.
The minister is not just referring to the dockets. The minister says the allegations contained therein implicate very senior members of the South African Police Service and viewed in a serious light and case dockets were registered as per the following cases. Meaning whatever allegations that implicate senior members of SAPs are in these four dockets referred on 310. He goes further to say due to the nature of the allegations made by honorable Fadil Adams which is deemed to be quite sensitive and which contains allegations of criminal misconduct. This office requests the investigating director to consider the same.
>> Okay. Now let's look at the paragraph you just read. The allegations contain therein.
What what what the reference to the therein and I propose to you the therein is the correspondence addressed to the minister.
So the allegations contained in [clears throat] the correspondence from Mr. Adams to the minister implicate very senior members of the South African police and the implication is that they intercepted the dockets.
>> I don't read it like that.
>> How do you read it?
>> I read that the allegations contained therein in these dockets in the dockets implicate very senior members of the South African Police Services. What in this communication gives you a sense that the minister or Mr. Gabindi has seen the contents of the dockets? I'm not saying they saw the contents of the dockets.
They refer to Mr. Adams and say the allegations contained by Mr. Adams implicate very senior members of the South African Police Service and are viewed in a serious light and case dockets were registered as per the following CAS number. But but if your your reading of this letter is correct, then the minister's office must have seen the dockets. Otherwise, they're not in a position to express a view that the the allegations are viewed in a serious light and that they are quite sensitive.
what is contained therein if if it is a reference to the dockets the minister must have seen these dockets for your reading to be correct it must be so >> for for for the way I read them um uh commissioner Baloy he refers to Adams Adams would have made the allegations I'm not sure in what form he made them to the minister >> no no what we know from this letter is the minister has been given correspond respondence by Adams. That's what that letter says. This correspondence from Mr. Adams. You say the second paragraph and the third paragraph. Do not refer to that correspondence unless you're suggesting the minister must have had a telephone call with Mr. Adams and that's why he's able to talk about these dockets, the content of these dockets.
And and I I suspect that's not what you want to say. Um because the next question would be how do you know they had a conversation about the dockets and what's contained in the dockets. So let's read the letter sensibly.
Paragraph one says I attach a copy of the correspondence received from Mr. Adams. That's what it says. And then paragraph two says the allegations contained therein implicate serious members of the of the South African police. I I want to say to you that a sensible reading of this first paragraph and the second paragraph is the contained therein in refers or must refer to the attached correspondence.
That is a sensible reading. Otherwise, why does he mention that letter to you?
>> That is correct.
>> Yes. So, so your reading of it to say, well, it when he talks about implicating senior officers and containing sensitive matter, he's referring to what is contained in the dockets. It doesn't work. It's not a sensible way of reading this letter. But more importantly and seriously, it works only if you say that the minister must have had a conversation with Mr. Adams about these these these dockets to know that matter contained therein uh in those dockets is sensitive and it implicates senior police officers and who are those senior police officers.
You agree with me? You must agree with me.
>> I agree with the reading of a copy of a written correspondence which would have set out those serious allegations as contained. Yes.
>> And therefore the reference to the dockets because he refers to the dockets. Yes. But that the written correspondence would have set out these serious allegations.
>> Yes, that's the only way it works. Thank you.
>> And and for that you would have to go to page 283 of the same bundle >> two >> 283 >> that that that is the correspondence we suggested was attached to the ministers.
the the serious allegations implicating senior officers are contained there because >> uh apologies commissioner MK15 please go to MK-15 >> I am there >> and then to page 283 >> I am there >> thank you >> so that email of 1 November 2024 at 821 that is the correspondence address to the minister and the docket numbers are there and then allegation two is that I was told the dockets were intercepted and then he says I traveled to Johannesburg Orlando opened new dockets you see there then he implicates senior officers because he then says they interfered in the investigative process and he was notified that uh is following the same process and the request to the minister is I urgently and humbly ask the minister to intervene to ensure the integrity of the investigative process is maintained. So this is the request that gives rise to the referral to IDC and that was uh advocate Silo's point that the referral to IDC was about this allegations implicating senior officers not for IDC to go take over the dockets that were opened in Orlando and the Western Cape and investigate those underlying allegations in those dockets.
So having seen this you can now go back to the letter and respond. Sorry, having seen this, you can now go back to the letter. It's on 310 and respond to advocacy loss question.
I I I still maintain that although you have that that email, this letter tells you referral and request for investigation in terms of section 27. It does talk to copy of written correspondence to the minister by Fadil Adams and therein are serious allegations and due to the nature of these allegations they are referring then to those to the allegations as he makes out in his written correspondence which must almost invariably it would seem refer to the dockets that is my reading commissioner I'm not saying that it cannot be read differently. I'm saying that is my reading and I can't take it further than that is my reading of the the title what is referred to and what subsequently happened and you insist on that reading not withstanding the fact that it belies any logical form of interpretation but you insist on that wedding on on that interpretation I believe that the interpretation is logical.
>> Okay. Now, under which cast number or inquiry number did um IDC investigate the claim of interception.
That's the original claim by Mr. Adams.
That is the complaint that the minister purported to refer to IDC.
>> So in the communications with Mr. Adams, he was asked for his section 27.
>> I'm asking under which case number or inquiry number?
>> It would all have been under the one inquiry under which the section 27 came.
There wasn't a separate inquiry for an interception or a separate inquiry for something else. When the 27 came in, if I may council, when the 27 came in, it was given a reference number. Yes.
>> And all those matters that flow from whatever the allegations are, including in the 27 where he says in one of the paragraphs that the dockets were intercepted or the dockets were taken uh for reasons that are not explained. They form part of his complaint. Yes. All one complaint.
>> Yes. I'm interested in the investigation into the interception because I did not I did not see it in the docket what we call the MUA matter. I didn't see that particular investigation in the docket and I wanted to find out whether IDC ever pursued that complaint that specific complaint of interception of Mr. Adams's dockets or whether it concentrated more [clears throat] on the that part of the section 27 referral that as I suggest was initiated by IDC when the when the referral had come in we had to find out where these dockets are. That was part of that exercise.
uh in order to locate the dockets to determine whether these dockets had in fact been intercepted and were no longer where they were.
to that end um council. What we did is we wrote because his last um reference is I opened dockets in Kouting, a letter was written to the provincial commissioner detectives, Major General Kumalo requesting the dockets.
I'm sorry to interject. Do you possibly have a date for that letter immediately at hand? Will you please give me a moment? It should have been in the that would have been the 6th of December if I speak under correction but uh in all like it is the sixth sorry I made a small note 6th of December.
>> And did you receive a response while we are on that point? Did you re receive a response and if so when?
Uh, General Kumalo um and and sorry this is uh a different Kumalo, not General Doisani Kumalo. The the PC for detectives uh indicated that he knew about these dockets but that these dockets were not with him.
He was going to tell us where to find those dockets.
In the interim, we Oh, he then indicated that the dockets could be with the DPCI.
When we contacted the DPCI, these dockets were not with them.
And in that process, one of the investigators found out that the dockets actually were with the seaps inspectorate more so the head of the inspectorate uh General Peter Jacobs.
>> And when was this discovery?
>> All on the sixth.
>> All on the sixth.
>> All on the sixth. Because we're looking for for the dockets. He's saying the dockets are missing. Do you know how he discovered that by any chance?
They I'm I know that the investigator indicated that he received information.
I don't have the detail of the information, but he received information that the docketes were the head of the inspected uh Lieutenant General Peter Jacobs. Going back to your team, we had quite a number of investigators there that you identified. Which particular investigator >> would have been Mr. Raesu?
>> Okay.
We got uh a bit sidetracked. Remember going back to the letter from the ministry regarding interception. I wanted to find out um that the case of interception of the specific docu dockets listed there.
Where did that investigation end?
>> The the dockets were found uh on that day.
>> Yes, it would not have been the end of your inquiry then. I mean you his complaint, remember his complaint is that dockets have been intercepted. That that's what his emails are about. He's not making >> the allegations that you later find in the section 27 that you have accepted you solicited. So we still at the earlier stages where where you get a complaint that um dos have been intercepted. You are telling us that you then inquired and in fact found that they are accounted for uh in the sub system.
>> Yes.
>> You get told that. Isn't that the end of his complaint? And shouldn't that have been the end of the complaint?
Commissioner Kumalo, that was one part of the I'm still Commissioner Belo.
>> Sorry. He looks and smiles there the entire time. Uh um and so one invariably, I do apologize, looks looks at him. Please don't frown, sir.
>> Have to change because clearly that's a problem.
>> Uh it is the one thing that gives comfort when you sit here as a witness is is a smiling face. Um, and we digress and I apologize. Um, it it it couldn't stop there because we now need to see what's in these dockets because here's an allegation that Adams is saying there are serious allegations I am making.
They are contained in these dockets but beyond the dockets I have an issue because these dockets are missing. He does say so in the 27. So once we determine council that the dockets are with the inspectorate we cannot ask the inspectorate for the dockets and and I'll tell you why I say that it's out of just normal >> no no just hold on your explanation.
>> Sorry commission my my question is pre the 27 we are still oh the 27th is in November. Okay now carry on. I do apologize. Sorry. We we get we get the section 27 on the 21st of November that allows us to be able to to look for what the allegations allude to.
In order for us to have access to the dockets, police will not give IDC dockets if doc IDAC does not have an investigation.
On the 6th of December, we having had the section 27 since the 21st of November, the prosecutor advocate Ram Sami is able to submit a section 2813 application which initiates an investigation. It is on that basis commissioners that we are able to write now to the head of detectives because ordinarily the custodians of the dockets especially under investigation are the detectives.
We write to the head of detectives indicating that IDC has initiated an investigation and the investigation requires that we have access to these dockets.
Um, perhaps this might be the appropriate point to turn to the referral [clears throat] affidavit itself, but I do so momentarily for purposes of the complaint of interception.
That would be at your file 2, page 512.
That will run till 5:16.
If we just run ahead to page 516, you confirm that is the it's signed above the name F. Adams.
Okay, Adams is misspelled, but I take it to be F. Adams MP dated the 21st of November 24 in Cape Town.
and um commissioned by commissioner of oats as indicated. Do you confirm that?
>> I confirm. I see that >> the conversation we were having, if we go back to paragraph one.
Paragraph one reads as follows. In my capacity as a member of parliament for the Republic of South Africa, I first opened three cases in Cape Town police station with cases case numbers Cape Town and they are stated. After I opened these cases, I take it I was informed that the cases were taken from the Cape Town police station to the office of the provincial commissioner Western Cape. I do not trust the provincial commissioner general particular and believe that a del deliberate attempt is taking place to get rid of the cases I had reported and to protect those against whom I made the cases. End of quote.
That is the investigation I'm asking about. Did you ever investigate the claims against General Particular? That is the interception. And I still don't understand whether or not you investigated that, you being IDC, or you didn't. And if you investigate, you investigated where you ever landed.
In in all honesty, council, I cannot tell you that there was a separate investigation about that interception.
>> Yes, >> I know that we sought to find those dockets and we then in fact found those dockets.
>> Your finding of the dockets surely doesn't address the the complaint of interception.
>> No, it doesn't. Yes.
>> And what I'm saying is there must be an investigation. I can come back to you with with a reference to an investigation, but I know that at the time the the the purpose was to first find these dockets which we in fact did and to then determine what the allegations are in those dockets. Do they talk to the 27 and what is the the way forward?
>> Okay. So would there be an investigation in your office that you don't know about because your answer suggests that your people may well be conducting investigations that you're not aware of.
>> Uh not that I won't know of an investigation but when when you have matters of of this nature uh Commissioner Baloy they divide the matters up into different legs of investigation so that they can deal with them differently. I may not be aware of a specific leg of investigation but I am aware that there is an investigation or investigations arising out of the section 27.
>> So you you would expect >> I would expect >> and we should expect that when you come back to us uh after lunch you will tell us there is an investigation into this interception. This is the team that is dealing with that and it is being done under cast number so and so it's information that you should be able to get. Thank you.
>> Thank you commissioner Balo.
[clears throat] So then just to recap where we are at, we know that we started with email communication by Mr. Adams to the office of the minister. The minister then directed the letter dated the the minister's office directed the letter dated the 11th of November 2024 to yourself and we know that subsequent to that you directed Mr. Perumal to obtain an affidavit from Mr. Adams, we are in agreement there.
Okay. Where did I lose you?
>> Sorry. Correction on the last part. The um or let's leave it at that. I think it's semantics. It's okay.
>> I'm not going to fight about the semantics. Sorry, chair. than having done so. And the issue at the time was interception of the dockets.
The a claim by Mr. Adams. It was a interception of the dockets. What we don't have before us in an is an invest is a file on the investigation regarding that particular complaint.
What we then have instead is what we have come to call the MUA matter which then is born of uh claims advanced by Mr. Adams at the instance of IDC as reflected in the section 27 affidavit.
Do you do you agree with me thus far?
>> Yes. and uh that we we we miss a matter before the MUA matter which was the Lucaba matter that was the first matter that was dealt with and then it was the MUA matter >> okay >> I just didn't want us to miss that >> I'm not sure I understand because in this complaint we are going to come across the Luchaba matter >> and >> now is that a separate investigation >> that was dealt with se so so what the prosecutors did >> let me let me say something to to I guess clear the cobwebs in my head. I want to determine how many separate investigations there are. My first was that the first investigation would at least have involved an investigation into the conduct of General Pedle as set out in paragraph one [clears throat] that you say you'll check uh on the file regarding that investigation. The second is the Muell matter quote you know quote unquote it's unfortunate we have to use her name in that manner but it's the quickest way of making [clears throat] reference without confusing each other.
Now you're suggesting that there is a third investigation on the Luchaba matter.
>> When the prosecutors got the section 27 referral council they broke it up as follows. Started with the General Lucaba matter. Yes, >> that's the first matter. The MUA matter being >> Apologies. Just a second. Thanks.
Thank you.
>> Thanks. You may continue.
>> Thank you, commissioners. So when the matters were broken up and I think they were broken up as their prosecutor explained in terms of the different categories of offenses. If you took them all as one, we would have had a lot of issues from misjinder to 10 people standing in the dock, one facing one count of something and someone facing 10 of the other and it it would have been a mis mismash. So they took it in terms of the allegations and grouped them accordingly.
In terms of what happened in the sequence, the sequence would have been as they identified the housebreaking incident of General Lucaba. That was the first investigation. That was the first matter council that was enrolled.
Thereafter it was the MUA matter. There is then a third investigation.
uh that is the one for which the warrants were held over just for context in terms of uh Lieutenant General Kumalo and General Maddo and then there are other matters that also emanate from this complaint. How many other meters >> there are?
I know for four, five, there would be six >> six other matters.
>> Six other matters.
>> Uh and they all you say they all emanate from the section 27.
>> That is correct. uh are you able over the course of the lunch break I guess to prepare a list for us of those matters and to indicate whether they are filed they have different cast numbers or inquiry numbers or any other useful reference >> I I do know that with the luchaba matter it's a se separate case yes of course as is with the muela matter and that had the other matter been enrolled it would also had its own CAS.
>> Yes. Okay.
>> And I and that's why I say it might possibly be a case number or an inquiry number just so we know which which we are pursuing. [clears throat] Now now that we we have started with the section 27 referral.
Uh let let's let's for a moment go back to section 27 of the NPA act. Before you do that, can I just check that the attendees have given you a copy because I saw that you were struggling. Can they just make sure that they give you the copy of the act?
>> Oh, apologies. I I'd assume the witness perhaps was >> I do. I I'll keep this one here. I think she's got her own version.
>> And uh out of habit, >> I noticed that when chair was engaging you, you were struggling finally. I think it's because I had too many documents on my table, Commissioner Kumal.
>> So, we we took the extra effort to ask the attorneys to make a copy and put it in a >> Thank you very much.
>> Thank you.
>> I'm going to be respectful and use the file [laughter] um that was made available. Thank you.
>> I I think so, Advocate Johnson, after all that effort. Right. Right.
>> Yes.
>> And and the few trees that we might have.
>> Absolutely.
>> Yes.
>> Absolutely.
We are now at section 27.
And section 27 tells us the affidavit contemp what the affidavit contemplated therein must contain.
Correct.
I'm sure it's a section you are well familiar with. You've had a number of referrals. I just went to the just went to the wrong side. Sorry.
I am there. Thank you.
>> Section 27. Yes. So you you do agree 7 uh sections 27 sub A sub B and to some extent sub C if there should be uh other relevant information dictates what the affidavit should contain. Section 27 affidavit.
>> Correct.
>> What are the consequences where an affidavit lacking in complete compliance with section 27?
What would be the consequences in so far as IDEX trigger is concerned where an section 27 affidavit is is insufficient for anyone of a number of reasons. Um we ordinarily would ask the um complainant to supplement or amplify and indicate what the shortcomings are.
Which parts are if the complainant is unable to amplify any one portion or portions that would then fulfill the requirements of section 27. We then have to indicate that we are unable to take the matter because the matter must fulfill certain requirements.
>> Okay. Thank you. Let's turn then to the section 27 affidavit that we received.
>> Do you [clears throat] do this that is the request for a supplement? Do you do that uh in all instances uh where um an affidavit is lacking in the necessary detail?
chair especially where just from a glance it would seem that they they're just missing something and there's a likelihood it falls within the mandate you ask them and when they amplify and you say okay it still falls short >> okay so that's exactly what I wanted to find out so reading it you are of the view that it does fall um within your mandate but you just want a supplement on certain specific issues or on a specific issue, but at least it's it's it's already there within the realm as it were.
>> Correct, chair.
>> Uh meaning if it's woefully hopeless, you just reject that. Correct.
>> That is correct.
>> All right. Thank you.
>> Just follow up on that by way of of of an example or question. So we're looking at 27 and the requirements thereof. If if you're given an affidavit that says I suspect that money is being stolen, that's a so they've told you the nature of the suspicion. And then they don't tell you the grounds on which the suspicion is based.
um and whatever else they say in C does not tell you the grounds on which the suspicion is based. There's been a non-compliance with B, right? What do you do?
>> You you would then check if they have a source of information that is still base it on.
>> Sorry. So you would even if they haven't set out grounds in their affidavit, they simply say I suspect money is being stolen. You're saying you then ask them for a supplementary affidavit?
>> No. If they if it's just I suspect and there's nothing more to it, >> then it does not fulfill >> and so >> because pro it's sorry, sorry, commission.
>> Yeah. No, >> it's it's you have to be mindful of the proddding.
>> Yes. and trying to elicit something they they know they should tell you because what does happen is ordinarily without saying what you want we are able to engage a section 27 referral and indicate uh these are the requirements your affidavit does not make out these requirements and there and then in in almost most cases people are able to say well I gave you what I have and and that just uh finishes the that part of it.
Thank you.
>> And when people tell you I gave you what I have and there are clearly no grounds in that affidavit, what does IDC do?
>> It may be council that it is insufficient for the purposes of IDAC where it has been insufficient for the purposes of IDAC but we are aware that it could go to the detectives and or it could go to the DPCI.
We write to the referral or to the referee. I apologize to indicate whilst this does not comply with IDA's mandate, you are able to refer this matter to the detectives, we are writing to. So we do two things. We inform the complainant where they can go to and then we also write uh to the agency that we are able to send it to together with a copy of whatever information might have been received. We have also been able to do that where for example it it is something that is civil in nature but falls within the mandate of the SIU and we would say to them you might be able to find recourse here with the SIU. So we don't just leave them in the ledge if in fact it does make out uh an investigate uh allegations that are investigated by a different agency. We write to them. we write to the agency and we send that material as well. So at least where we land and and I'm testing my understanding of section 27 there are two main requirements in that section uh the affidavit must spell out the suspicion uh that the referee holds and then to advance grounds to support every specific suspicion you add has got the power to request maybe substantiation clarification from the referee uh where there are shortcomings with compliance with section 27. In the event that [clears throat] the suspicions are not substantiated and grounds not advanced by way of example, then IDC cannot investigate the matter. It it would normally refer it to another appropriate law enforcement agency.
>> Correct.
>> Is that a fair summary? Let's look then at the section 27 referral received from uh Mr. Adams. [clears throat] We we'll work through it in detail but uh my summary of it I would like to share with you what that affidavit and that's file 2 page 512.
>> I do have it.
>> Thank you.
That affidavit uh states the following.
it and uh it highlights or shares with the reader three key suspicions that Mr. Adams hovers.
The first is at paragraph two and therein uh paragraph two it says it expresses his growing concern that the head of crime intelligence general kumalo general lushaba general mondo and other senior crime intelligence officers are busy with systematic capture of crime intelligence division that's his first suspicion >> council may I ask a am I allowed to Mark, am I allowed to write on this document? Yes. Okay. Thank you.
>> Uh if it's in the witness file, we will just replace it with a fresh copy.
>> You said sorry, council. You said that is the first allegation, >> the first suspicion. Remember that the the affidavit actually requires the the deponent to state what suspicions that they they have. The first is there in paragraph two on my reading. The second would be at paragraph four. Let's let's take it step by step. Do you do you agree that that's the first uh suspicion?
>> That is the first one.
>> All right. Thank you.
>> Thank you, chair.
Um and paragraph three for purposes then of completeness.
He uh the deponent speaks to what became clearer to him. No, how the his suspicion became clearer to him, but he adds nothing more.
Um he references an envelope he says was slipped under the door of his office in parliament containing some crime crime intelligence procurement documents using secret funds of crime intelligence and vetting documents. So he tells you that I have that but he doesn't share the contents of those. Yes.
>> The second suspicion is reflected in paragraph four.
And on my reading that uh speaks to two suspicions. The first being an manipulation of procurement processes and processes to appoint and promote certain persons within crime intelligence. That's at paragraph four.
The first part of paragraph 4. The second part is uh calls for the need to investigate appointments at various secret service offices.
Sorry.
Do you do you agree with me? That's >> I have that >> at paragraph five.
He expresses a suspicion that some funds are being taken unlawfully from the secret funds account and given to police minister Becky Gal.
Add paragraph six >> before you do paragraph six.
>> Yes. Yes. Paragraph >> paragraph 5. Did you consider it to complain to contain two complaints? I mean, there's the first about money being suspected to be given to former minister Kle and then um and then it seems to me there's a second leg to it, an allegation that the former minister appointed General Kumalu without an interview process and without Kumalo having worked as a did you consider that another suspicion and complaint or did you out.
>> I would I must say before I must say before you I must say before you answer that considering how the MUA matter has gone.
>> Yes.
>> I expect that >> that would have been one of it's a separate appointment >> and if you haven't there has to be an explanation why this was not investigated.
>> It is part of other appointments.
>> Okay. So you will come back to us with the details. Thank you um >> to you and and may I just pause just to indicate commissioners at the bottom of paragraph 4 it is not separate but there is reference in the last line which we had to look at as we go through all of the matters uh likely points to launder money. So the money laundering is an aspect to consider when you look at money flows that may run through the course of all of these and they are not it's not a standalone matter.
No chair.
>> Sorry. Sorry. You say that one go and you are referring to the last sentence of four.
>> Correct. Chair.
>> And and you and you say it goes with uh with what?
>> It it would go with two which is the manipulating of procurement processes. And then um uh with five which council had pointed out about the taken unlawfully from the secret funds.
>> Which sentence are you referring to in two >> sentence or sentences?
>> Sorry. Uh paragraph four >> paragraph four >> line two >> line two. Oh >> yes chair about the manipulating procurement processes.
>> Okay. Okay. All right.
>> Just to indicate that money laundering is considered uh but not as a standalone just within the ambit of those matters.
>> Yes.
>> Okay. Okay.
>> Thank you.
>> So uh >> may I interrupt it council? I think we >> No, it's okay. Just on the point you've made, it's uh it's a suspicion but couched more in request terms because he's requesting that you look into these matters. Um I guess because there the Secret Service offices in the country are likely points to money laundering out of crime intelligence.
So in that I I can accept that there's a suspicion that there is money laundering except that he would like uh IDC to investigate whether that laundering happens through various secret service offices.
>> Correct.
>> Okay. Then we agreed that at five it's a suspicion about secret funds being given to the former minister Belell.
>> Yes ma'am. uh six. I don't see a suspicion in six. So I would I would skip it for now. We'll come back to six.
The last suspicion that he he then uh point highlights is at seven at page 515.
My suspicion is that General Kumalo Shaba Madondo and many of those who they have appointed are actively siphoning money from the secret funds fund accounts in the country. I understand that there are about 10 secret fund points in the country where monies can be drawn from and all of these extraction points need to be investigated.
That's another suspicion >> at seven.
>> May I take you back to six council?
>> Yes, ma'am.
That is the the the Lucaba matter and therein he has been charged not just with the with the housebreaking but with the uh defeating and obstructing with regards to the um loss of the equipment of crime intelligence and the non-disclosure thereof and the fact that um there's secret information contained therein. So there's a what I'm saying is there's a the six is the luchaba matter that is currently in court.
>> Yes, I'd ask that we skip that because we are trying you know >> only to distill from this >> from the affidavit what the the deponent suspects and what suspicions he has put forward to IDC.
So we have dealt with the suspicion at seven then eight and nine basically reverts to the dockets. He had opened the three cases in uh at Cape Town in Cape Town and the other three in Nando police station and at it ends at 516.
So if we we at least roughly summarized his [clears throat] suspicions, I can see how he has complied with section 27A, which is to to set out the suspicions of a crime that he complains of.
I am missing part B of that which is requires him to set out the grounds on which the very suspicions that we have referenced are based.
Do do you find the grounds in this affidavit >> per suspicion? May May I just raise an issue with you which is a >> a legal question with regard to Oh, you are looking at ABC >> in the chair.
>> Um, okay. That's the nature of I'm looking at the the the introductory part of the section itself. If any person has reasonable grounds, grounds on uh I would not go to ABC without first ensuring that uh that introductory part has itself been satisfied and uh that I would do on the basis that this is an objective test.
>> Yes.
>> You and I do not have to rely on what um Mr. Adams subjectively thought. Yes.
>> So I would start there. Is there were there reasonable grounds? But anyway, let me leave it.
>> My my approach is slightly different.
>> But but I'm just making >> yes I I take the point.
>> I would not I would not get to ABC before but >> I I I take the point chair. That's an approach. But I I I decided to adopt a different one. Here is IDC having solicited an affidavit receives the affidavit before a decision is taken even for a preliminary investigation.
that affidavit must fall in must comply with at least ABC >> and I conclude that the grounds advanced in terms of B would lead to the conclusion at the start of that whether they are reasonable grounds. So it's sort of a >> in the end in the end perhaps it works the same way >> because because I'm trying to test at which point in so far as ID is concerned a section 25 27 referral dies >> for non-compliance if ever there is such a point.
>> No please go ahead.
>> Thank you chair.
>> Thank you. So I'm now I'm now looking at 27B and my reading of this affidavit is that it's replete with suspicions but absolutely no grounds to support any of the suspicions advanced unless you can find any that perhaps I may have missed. I I I adopted the um approach I did to say let's summarize and see if we can quantify the suspicions. So we look let's start with the suspicion at two that uh General Kumalo Lucaba Madono and other senior crime intelligence officers were busy with the systematic capture of the crime intelligence division. Let's just sit with that one suspicion. Where in this affidavit do I find grounds to support that uh suspicion which then would take A and B of section 27.
So uh first on in paragraph two um line one commissioners he says so the cases he refers to above uh must refer to to what follows and he says the cases were opened based on information I received from time to time uh which places the SAP's crime intelligence and then it follows. So he receives information from time to time.
And he then says in paragraph three that that suspicion became even clearer when an envelope pushed under his door at parliament contained crime intelligence procurement documents using secret funds of crime intelligence and vetting documents. So the grounds on which he bases it is information he receives.
information he he receives um from time to time and further expounded by the fact that he has this envelope with further information that is is pushed under his door. That that is the the the genesis uh for the grounds on which his suspicion is based. You said he did not give Idk that information which was slipped under his door.
>> That is correct.
>> So that's like saying I have grounds but I won't tell you what they are.
>> May I explain a further process that then happened? Uh and sorry council may I >> absolutely ma'am because it might it might seem to jump the gun but it will then perhaps provide more clarity.
We've got we received the section 27.
We received the dockets.
IDAC takes the stance that an engagement has to happen with Mr. Adams because this this 27 he did on his own and sent through to us. We have the dockets. But do when they had the engagement, having read the dockets, having read the 27, it goes back to what I said. You then engage the person to see if there is other grounds that need to be covered and further statements commissioners were then taken in the engagements had with him in January of 202.
I think where we are advocate Johnson is that 27 says these things must be specified in the 27 affidavit.
Because if you read 27, it says by means of an affidavit or a firm declaration specifying ABC.
So ABC are to be specified in the affidavit.
>> Correct. they are not to be established at a later point. So the entry point is the affidavit which specifies A, B and C.
>> And it is for those reasons uh Commissioner Kumalo that I referred to those two paragraphs. That is where I took that from where I were based uh where were opened based on information I received from time to time and the information placed under his door. If perhaps you may assist us then uh the the suspicion as General Kumar Lulu Shaba and Madono and others are busy with systematic capture of the crime intelligence division. That's the suspicion. You are satisfied that that affidavit contains grounds to support that suspicion. Can you summarize those grounds for us >> with reference to the affidavit itself?
Right.
>> Indeed. Thank you commission for for on my reading council.
>> Yes ma'am. that that suspicion is. He refers to the suspicion and he proceeds to explain as he does in paragraph 4.
>> And what grounds are articulated in paragraph 4?
>> Says that he suspects that General Kumalo and some senior officers in crime intelligence including um >> I apologize. I thought we agreed that paragraph 4 contains other suspicions.
I'm still looking for the grounds for the suspicion that Kumalo at all are busy with systematic capture of crime intelligence. Where are the grounds for that? The the manipulation of procurement processes and processes to a point is another suspicion. It's a different one. Yes. And I'm saying that it is it is based on I didn't I don't read it to mean that every single suspicion must is supposed to have a ground. If my reading is incorrect.
>> No, no, no. I'm saying that is how I read it. I read it as I received information from time to time. From that information I received from time to time, there are all of these allegations inclusive of the documents under my door.
>> Okay. You wanted to invoke paragraph 4 to to establish the grounds. Remember, we still have to comply with section 27B.
>> Yes. So, we're going to have to at least find the grounds for the suspicion reflected in paragraph two. You say those grounds lie in paragraph 4. And if you could just summarize them quickly for us and and simply because my reading of paragraph 4 is slightly different, but I'll I'll I'll take your perspective. So he in the the suspicion of the systemic capture lies in his suspicions in in paragraph 4 in terms of he refers to to to the procurement uh manipulation uh the for lack of a better description uh uh manipulation of appointment processes uh 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 Madono 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's faulty reasoning uh it is a suspicion on his terms it is he tells you that's what I suspect the question to you 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 do 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.
>> Factual conclusion after factual conclusion.
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?
>> If if you could just take >> those are factual conclusions. Let me give you let let me give you agree. Do you agree?
>> I understand >> those are factual. Do you agree?
>> I agree.
>> So if we go back to um Miss Silo's question, she wants to understand what those what that factual substratum is.
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.
Let me give you an example.
If someone says, I suspect that Tom and Dick killed Harry, that's a conclusion.
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?
>> I understand.
>> Otherwise, it's a factual conclusion to say that Tom and Harry killed Dick.
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.
>> Do you agree?
>> I agree.
>> You accept that proposition?
>> I accept your proposition.
>> Yes, Mr. >> Thank you, chair.
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.
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?
>> I I have referred to the 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.
Yes.
>> The factual basis that undergrads or supports the factual conclusion.
>> Correct.
>> You've accepted that there was none.
>> Yes.
>> Do you then accept on that basis because uh my and your engagement has started on the basis of the first suspicion.
>> 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?
>> 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.
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.
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.
>> Yes. So, so in on the basis thereof, commissioners, I've applied my mind differently, 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 time based on how I understood section B or what section B to mean at the time yes I agreed that it fulfilled that requirement because he had knowledge that he had grounds on which it was based.
I've I've I've given the answer commissioner I can't change that answer.
Are you are you are you seriously telling us that uh since what you've been the director since 2022 is it?
>> Yes.
>> Are you telling us that since 2022?
This is how you've uh understood your legal mandate or IDEX IDEX legal mandate.
>> No. Did 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.
>> He he Mr. Adams, did I did I understand you correctly?
>> Correct.
>> 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. [clears throat] 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.
>> Yes.
>> That must be born by a reasonable man and person >> person by 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.
>> 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.
There are documents that are shared.
There's information that is shared. I did not take his to be just the test of a subjective mind of just a reasonable man.
>> No, no, no, no. You can't fascate issues in the manner in which you are saying.
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?
>> Correct.
>> 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.
>> Maybe I didn't express myself correctly.
I'm saying that the reasonable man test, >> the person test applies.
But Adam >> once you see that there in 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.
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.
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?
Because if you do, it raises very serious issues about your application of the of the section >> over all these years.
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?
>> It is an objective test of the reasonable person.
>> It's an it's an objective test.
>> Yes.
>> 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 objective. 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?
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?
>> 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.
>> Correct.
>> So reasonable did not come into the equation to your mind. Correct.
>> 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.
>> 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.
Not on your approach. You must accept that.
>> I hear you, Commissioner.
>> Do you accept it?
>> I accept that.
>> Thank you.
>> 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.
Has that been the case throughout the years you've been at IDC?
>> No ma'am.
>> 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' 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.
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?
>> So I I I I'm not going back.
>> Yes.
>> Okay. Um and and I think that is where my fault 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.
Here I brought a subjective mind to bear on the information the person gave us.
and Advocate Johnson that is apparent from paragraph 4 because Mr. Adam says none of these people were suitable to be appointed to the post.
That's his personal view without grounds to support that.
>> Correct.
>> 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.
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.
Because appointment of somebody from BMW on its own does not tell you anything because my immediate question would be what is wrong with appointing somebody an engineer from BMW?
If the position required an engineer, what would be wrong with that?
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 1 2 3 not that it must set out the suspicion and then the grounds ID will figure them out for itself.
>> Understood.
just just on on on an answer you gave in response to Miss Silo, >> you said uh an error that you committed was not to apply the to was to apply the subjective test. The test is in fact objective.
in that response based on the answers you gave me gave to me um and repeating the same thing a good few times throughout until your engagement with me the distinct impression I got was that you've always understood the test to be subjective correct >> I understood the test to be the reasonable man, a reasonable person test which is an objective test.
>> Okay, I I will not go back. You you I engaged you on the subjective and so on because you cannot marry subjective and objective. It simply can let me let me ask you this question. So throughout your understanding of section 27 was in accordance with the responses you gave when I engaged you as to what those were. The transcript will assist us throughout that was your understanding.
It is only now that you have clarity as to what exactly the test is. That is a test which is not subjective as you suggested it was or a test which does not seek to mix a subjective and objective test. It is simply objective. So before now you had [laughter] I feel bad to have to use this word but your understanding was this modeled view of what the test was.
which modeled view came out as I engaged you. So that was your understanding until now until during this engagement.
Is that a fair suggestion to you?
>> It is fair.
>> Thank you.
Can I just say m Mr. And that even even allowing for it was an error. You apply the subjective test because of your misunderstanding of the the test that applies. Even on that in this affidavit in so far as 7 27B requires him to sets out to set out grounds. This affidavit doesn't set out any grounds to to say I received an envelope that has procurement matters.
That's not a ground. It doesn't tell you anything about the contents of the of the envelope. For all I care, uh those procurement documents may well not demonstrate anything wrong. So it's not clear to me when you say well I accepted because he's a member of parliament who serves in the portfolio committee that when he says he has an envelope that is that is sufficient um you you surely must know and understand that for you to say this falls within our mandate you need to satisfy yourself with whatever it is is relying on so I I I don't accept that what you say is an error on your part of applying the the the the wrong test that it it explains what happened here. It it he doesn't even on that error I would expect you as you understand the section it says he must set out grounds and he doesn't he doesn't when he goes on to say four other killers who qualified or who are employed in crime intelligence none of them were suitable to be appointed in this post it doesn't tell you anything about this candidate that was appointed it it doesn't so it is clear in 27B that he does need to tell you facts. He subjectively he thinks those facts um meet the the test but you have to know those facts before you say yes our mandate is triggered. Uh uh you must agree with me. I must be correct in what I'm saying.
>> I'm not about to disagree.
>> Okay. Thank you.
>> Thank you chair. I see it's 12:59, but an opportune time to take a lunchment.
Thank you.
>> Thank you, Miss.
Let's uh Jen and come back at 2 p.m.
>> Thank you.
One, two.
>> We are ready to resume. Please make sure that your cell phones are off. Thank you.
Yes, Miss uh senator.
>> Thank you, chair. Chair, before we we continue with the witness this afternoon, uh Advocate Johnson has made a request to to us as evidence leaders which request I table to the commissioners for consideration.
Advocate Johnson has requested that we sit until 4, but may she be excused at 3 this afternoon. She's, as chas currently on medication following her illness last week, and I'm made to understand that the medication she's on is having uh some debilitating effect on her. So, she has requested an early stand down today at 3:00.
I I confirmed that chair. There was that communicated to me by Miss Johnson. I communicated it to Miss Cello and that's where we are. Thank you.
>> Thank you, Mr. Lo. Thank you, Mr. Bani.
We will agend at 300 p.m. Then >> thank you, Chair.
>> Thank you, >> uh, Miss Johnson. Then we we have an hour to to run through some of the issues we had wanted to engage you with on today.
I hope um I hope you feel better tomorrow.
>> Thank you. And thank you chair.
>> Thank you. Uh we we had just looked at the affidavit and its compliance or the lack thereof with section 27.
So now we're at a point where you are in receipt of this affidavit. Can you take the commissioners through every step you took regarding this affidavit, any discussions you had and with whom until the point of the 6th of December when you say you took a decision to refer the matter for a preliminary investigation. Thank you.
Maybe maybe before you do that, let let's remember earlier we we we discussed that u after you received the letter you from the minister's office, you then spoke to Mr. Perumal, >> correct?
>> Who then took it from there? Now when Mr. Peruml after you speak to him and he takes it from there, does he come back to you to say anything before before we get to this point of the section 27 affidavit?
>> Um, uh, Commissioner Baloy, what he does come back and say, the gist of which is he has communicated with Mr. Adams. Mr. Adams uh indicated that he had uh reported these four dockets that we see in in the letter. He informed Mr. Adams that as per id if you want IDC to look at a matter you would have to depose to a section 27 affidavit. He told him it would be best if he may be sat with a legal representative.
told him where to find the provisions of section 27 and for him to then should he still be of a mind to then depose to an affidavit. That is where that part stopped and then on the 21st of November we were in fact then furnished with the section 27 referral which is currently in the do uh at least part of the bundle.
>> Okay. Thank you. Then back to Miss Seller's question then.
>> Thank you commissioner. Perhaps for for for my benefit as well, please repeat.
>> Oh, the question was [clears throat] um we have just very quickly looked at the section the contents of section 27 affidavit um and as I understand from the witness's testimony, she has seen it and perhaps has engaged with the the the affidavit. We are aware that on the 6th of December 2024, she took a decision to initiate a preliminary investigation based on the affidavit. So I would like her to inform the commissioners of the steps she took subsequent to the receipt and consideration of this affidavit up until she took that decision.
>> Oh, thank you. May I find out if if you will be dealing with his reason to suspect at some stage? I'm not pushing you there. Not now.
>> Yes.
>> Has reason to suspect in 281A at some stage?
>> Yes.
>> All right.
>> I intend to do so.
>> Thank you. Thank you. Please respond to the question. Uh, Miss Johnson.
>> Thank you, chair.
I received the uh I received the section 27 referral.
Once I received the referral, [clears throat] I myself perused the referral, I then decided to give the referral to the team of advocate Manilal. At the time, uh I can't recall where he was, but I gave it to the advocate in his team, which is advocate Rams Sami.
The purpose is as was explained previously that once you allocate it to a team commissioners they would then peruse see whether there's sufficiency what next steps must flow. Miss Ramsami uh uh advocate Ramsami then perused the section 27 uh and brought a section 2813 applications and the purpose sorry >> can I just interrupt you before you you speak to the purpose you you haven't said anything about Mr. Soo is that is it because at that time he's not featured.
>> It's not featured and because this was really um some of the 27s are really voluminous and I like that two- mind approach. This was just a small document where I could quickly apply or apply my mind and I looked at it and said let me give it to a team as we would then ordinarily do cuz on the face of it there were offenses that fell within the mandate.
I gave it to advocate Ram Sami who would who then perused the section 27.
She realized that there were references made to dockets and because we didn't have those dockets, the best way instead of asking Mr. Adams to amplify the 27 as one would ordinarily have done is to first get these dockets because he's talking to allegations in these dockets and he makes reference there too. So in order to get those sorry council >> No, no, please proceed. Never mind me.
>> No, no.
>> No, no, continue. I don't I don't intend to interrupt at all. Thank you.
>> Um and in doing that, she applied for a section 2813 which is a preliminary investigation on the 6th of December.
It was a mechanism commissioners for us to then have an authorized investigation in order for us to now determine where these dockets were.
Bearing in mind that Mr. Adams has already alluded to the fact that in Cape Town these dockets were no longer there.
He makes allegations but he then says he opened dockets in Kha so there's no need for us to go to Cape Town like if you opened similar dockets in Khoeng we engage then with with detectives in Kha it would have been one of the investigators it would either have been Mr. Peral or Mr. Rapeso who indicated that we need to write a letter to the head of the detectives in Koeng who was a major general Kumalo.
Um it is a formal approach um uh in terms of acquiring those dockets. Uh I did um pen a letter under my hand to the major general indicating that IDC was now vested with an investigation and would require the dockets as per the letter which were the dockets that were referred to uh in the minister's letter and subsequently by by uh Mr. Adams >> and by this stage you have now made a decision that IDACK is investigating this matter by the time we are now asking for dockets.
>> A preliminary investigation. Yes.
>> Okay.
>> Um and a preliminary investigation if I may may is it might pan out to nothing.
That is why it is safer to have done a preliminary investigation because not knowing what's in the dockets, it could be a futile exercise having a full investigation using all of the time and resources and find that actually it's insubstantial to um to support >> and you you you did this in terms of section 283 >> 13 chair >> section 2813. All right. Thank you.
Thank you chair. Um, in the morning I had understood that your approach to the head of detectives, I think you said General Kumalo, Major General, >> Major General Kumalo was for requesting the dockets was on the 6th of December.
>> That is correct.
>> That is the same day uh a decision was taken to authorize a preliminary investigation.
So it can be on the 6th of December that advocate Ramsami made an application because you are only making a decision on the 6th of September to initiate at 2813 in preliminary investigation.
>> The authorization was dated the 6th.
>> That's your authorization.
>> My authorization. She would have given me the papers prior. I just can't tell you which day prior to >> what what papers would she have given you this week?
>> This is an application for an authorization which the ID must consider to to approve. So she wouldn't have given it to me on the day to approve on the day.
>> So the the time she gives you whatever application she does, what is she armed with?
>> She would have been armed with the section 27.
>> She she so at least she got a copy. He had the 27.
>> Okay.
>> Yes, ma'am.
>> Now, I think it was yesterday or this morning, I I came to understand and maybe I was wrong in my understanding [clears throat] that prior to the 6th, you and Mr. Mrs. I thought you said engaged extensively over this section 27 uh affidavit on the basis of which you then took the decision you did on the 6th of December. Now in the narrative you just provided you haven't said anything about your engagements with Mr. Sissoko. Um the chair did ask earlier I said I in in most of them I would engage with Mr. Mr. Soo, this was a very small section 27.
I don't have to give him. It is a practice I do. And and usually with with the more more bulky ones, they have been on the off case or off chance where it's really a small not small that's it's not nice to say small. It it might not be substantial and I am able to go through it myself, apply my mind and make a decision. So are you suggesting my understanding all this time has been wrong that you engaged with Mr. Sissoko on this particular referral because that's what I had understood from your testimony.
>> I didn't engage him on this referral.
>> Well, it's not Mr. L. It's not it's not a misunderstanding. It's what you said um throughout that you did consult with him. uh if you recall even yesterday when I said to you that Kel Paraki spoke of an committee an intake committee and you said well on paper we have it but we haven't yet implemented it and so what I do this is what you said what I do is I receive it I consider it a form of view a gift to Sissoko and he then took that into account and he came back to me and we agreed uh that this falls within a mandate that that was your testimony yesterday. Um so you it's not a case of misunderstanding it's you are revising what revising what you you said to us yesterday.
>> Sorry I if I created the wrong I meant when we talked about the intake committee I was trying to explain that there is no committee how the section 27s worked.
So if I created that impression or that was it it's incorrect. I did not share the section 27 uh with Mr. Susoko.
>> So too then was Kenel Padiachi wrong in testifying that the briefing was given to the team by Chief Perumal after the case management committee or had considered the section 27. That's utterly wrong.
>> No that's wrong >> because you are not a committee. You are one person.
>> You're not a committee.
>> Yes. And and sorry chair I did indicate yesterday there is no comedy and I cannot call Mr. Susokco and I a comedy.
I I give it to him because he's an investigator and with me being a prosecutor it helps that perspective but there is no comedy at the moment that deals with any of the 27s as they come in. Uh, and it might be a speculation on your part, but what could possibly have led Kenel Padia to conclude that the investigation referred to the team was following a decision by a committee. What could have >> um I think I alluded to yesterday that we in the process of putting together a draft standard operating procedure manual. It is one of the things that is proposed in the manual but it is not implemented currently or in effect.
Um >> okay I I think I did a note to that yesterday.
So please have regard then to section 27 seeing as you are the person who received the the section 27 referral who considered it.
I think now we at that point the the the the question the chair wanted to engage you on.
Is it correct to say that on your reading of that affidavit you considered that there were reasonable grounds to proceed with this investigation?
>> Correct.
>> You you that's what you consider on what basis?
>> I I [clears throat] there were reasonable grounds for us to consider the matter based on the allegations made out >> just the suspicions. the reasonable suspicions >> and at that juncture you had nothing but the section 27.
>> That is correct.
>> And then if we go to section 2813 that section provides if the investigating director considers it necessary to hear evidence in order to enable him or her to determine if there are reasonable grounds to conduct an investigation in terms of subsection 1A. the investigating director may hold a preparatory investigation.
So by by this point you had based on just the affidavit you considered necessary to hear evidence on these suspicions. That is correct. And and they hear evidence is not of necessity uh oral evidence. It's it's it's getting the evidence to support if there is in fact to support those reasonable grounds.
>> But what what do you make of the word here? Open code here here evidence. What do you make of just that word here?
>> Uh is the conducting of the interview with the witnesses.
>> Okay.
>> Prospective witnesses.
>> Okay. And thank you chair. and and that be a formal process, a recorded process, >> those interviews, >> a recorded process. Yes. Uh more often than not, the 28s are recorded process or it is an interview process and then the statement is taken.
>> Yeah. But but what I'm asking is in what happened in that interview, there must be a record of it.
>> There should be a record of it. Yes.
>> On this day, so and so met with Mr. Adams um at Pritoria uh from this time to that time this is what was discussed. Yes, it will culminate in a statement but there is a recorder.
>> There should be a recording >> of what happened. Thank you.
>> Yes.
>> And you know this for a fact. We don't want you we don't want sorry just a minute. We don't want you going back on what we've just said in response to my colleague Commissioner.
>> I did say chair there should be a recording. I will confirm that. Um whether or not there was a recording there must >> when you say when you say when you say there should be are you referring to this instance or are you saying there should be a recording generally as a general statement?
>> Um in in these matters generally there is a recording.
>> There is a recording.
>> A recording. Yes.
>> As a matter of course.
>> As a matter of course >> there is a recording.
>> Yes.
>> All right. All right. May I just ask one?
>> Absolutely. Ch. Thank you.
>> The section 2813 um hearing of evidence. Let me loosely call it that.
Surely that uh the the need for that does not undo the requirements of section 27.
Section 27 must have been satisfied. the requirements of 27 must have been satisfied.
You cannot if if the affidavit does not meet those requirements, you cannot get to 2813.
Is that correct? Do you agree?
>> That is correct chair.
>> Thank you. So basically as you would have learned in your administrative law those are the jurisdictional facts for um or to trigger anything that gets done under 28.
>> Correct.
>> Those are the jurisdictional facts.
Correct.
>> Thank you. Thank you.
>> Just one from me. um to hear evidence under subsection 13, do you have to summon the witnesses who are going to give that evidence?
Do you have to issue a summons to Mr. Adams for example? How do you hear the evidence in the absence of a summons?
There there are often times uh Commissioner Kumalo where you contact the person and they are prepared to come in or where they do not want to come in then you do issue the summons in terms of section 20.
>> So in this specific case what happened >> in this specific case uh Mr. Adams was contacted he was prepared to cooperate and the investigators and a prosecutor then went ahead to interview him.
Now it works. Now it works. Um, Miss M.
Johnson, can we have um the a record of that section 2813 process that you say happened? Can we just have a complete record of that >> for for this?
>> Yes. That 20 2813 process >> that would have happened with Adams in January.
>> Yes. Thank you.
>> Thank you, Commissioners.
So I think earlier Oh sorry question she's still writing >> thank you >> you made a note okay earlier you indicated that advocate Ramsami prepared the section 2813 >> application correct um are you a we don't have a copy of that application are you able to provide Ed one.
>> May I just check with my advocate Mara if they didn't ask for the section 2813?
>> No, we we hadn't requested it in the subpoena. It's not one of the subpoena documents. So I'm I'm saying >> now that you reference it, are you able to provide us with a copy?
Um, so then if I understand your testimony, you you you give an instruction to advocate Ramsami and the section 27 affidavit.
>> Correct.
And you want advocates Ramsami to make an application back to you >> in terms of section 2813. Please please explain how that works. It I I have applied my mind to the section 27.
>> Yes.
>> But I have to give it to a team to also apply their mind and to see whether or not an investigation can be instituted.
I took the view at the time that it fell within the mandate of IDAC.
But in terms of the the the prescripts, no investigations can happen if you are unable to comply with an application for an investigation. So we hand it over to the prosecutor who must look at the 27.
She didn't have to apply for a 2813.
If she then after having assessed it decided it does not fulfill all the requirements, it is consider this matter and if you agree that it falls within the mandate, we all lawyers to apply our minds. Then please lodge a section 28 application.
>> She decided to lodge a section 2813 application. You said the first part you you give it to the prosecutor and ask her to apply her mind to the section 27 affidavit and then express an opinion to you and then there thereafter she lodges an application. Is that correct?
>> Uh instead of an opinion if you agree that it falls within the mandate you then apply for a section 28.
>> Okay. Where where is that? How was that your instruction to her? Here's a section 27 affidavit. Consider it if you agree that it at least discloses a basis for a prelim preliminary investigation.
Please provide me with a section 2813 application. Is that more or less >> a section 28 application? Yes.
>> Is that how you it normally happens?
>> That is how I recall it happens. Yes.
Did uh it's advocate Rams Sami ever express a view to you on the content and depth of the section 27 affidavit?
Did you have she ever express her views on that affidavit?
>> Uh no. when she brought the section 28 application um I realized that she agreed uh with the contents of the section 27 and she never expressed a different view that u it's deficient it doesn't comply no she didn't >> she also didn't pick up the fact that it doesn't comply with section 27 no she didn't you commissioners yes please go ahead >> yes can the this application it's made in terms of what because my reading of 13 and it may well be that there's another section to read before I get to 13 but my reading of 13 seems to contemplate that uh you for example upon receipt of that Mr. Adams section 27. If you determined on the face of it that it is necessary to hear evidence, you would you would proceed to instruct that such a such a process should happen. Where do you do we see that Miss Ramsay had to make an application before that inquiry that that hearing of evidence could be held?
I I wouldn't have a difficulty reading 13 if you said I looked at this affidavit and determined that we need to hear more. Um and that and then I authorized a preliminary a preparatory investigation. I wouldn't have a difficulty with that because I read 13 to to empower you uh to do that. But you speak of a more involved process where you make the determination that this is false within our mandate.
You give it to somebody else to for their opinion and execute and then you say to them if you think we must do a preparatory um investigation bring that application and I would like to see where where is that contained that step.
So I take it um Commissioner Baloy from um the section that I had referred to which was the section 2813.
If the investigating director considers it necessary to hear evidence in order to enable him or her to determine if there are reasonable grounds to conduct an investigation in terms of subsection 1A, the investigating director may hold a preparatory investigation.
>> Yes, >> that is where we take it from. No, I'm I'm not questioning that you could convene the hearing of evidence um or you can convene a preparatory investigation or hold a preparatory investigation. I'm not taking quarrel with that. I accept that in terms of 13 you have the power. I'm just trying to understand this process that you've just described to Missilo where you get the section 27. You look at it, you make a determination that it falls within what is raised there falls within your mandate. So you should investigate and then you give it to Miss Ramay. Um you give it to the team I assume at that point to execute. But I understood you to say to Miss that in that discussion with Mr. Ramsay, you said to look at it.
If you think it's necessary to hold an a preparatory investigation, make an application. That's what I understood you to say.
>> Look at it and see if it is necessary to make a section 28 application.
>> Yes. Then my question is a section 28 application in terms of what is this a pract is this one of those where in your office you have ways of doing things. I mean you you have you have encountered these section 13 subsection 13 many many times. So if it was in the act, I think if that requirement to apply to you, if it was in the act, I would have expected you would go straight to it because it's something that you encounter every day.
If you are not able to find it, can we conclude that this is one of those way those instances where you practice things? You have ways of doing things.
They are just not written down >> that that are procedural based on the requirements of what would initiate an investigation.
>> Yes. So it's not written down anywhere.
You just have a practice in the office.
>> It is a practice. Yes.
>> Thank you.
Johnson >> both 27 and 28. So if you look at the main body of 27 and 281 because those are the two sections that take you to 2813 >> for you to determine that what is reported to IDC falls within your mandate. there must be a reasonable suspicion or reasonable grounds to suspect that a specified offense has been committed. So in what was presented to you, what is that specified offense that you looked at and then said this falls within our mandate?
>> Uh in terms of the 27 >> both 27 and 28 because that's where you start.
>> Yes. chair has engaged you on the test subjective objective. We've moved past that. Something further must exist and that is a suspicion that a specified offense has been committed or is being committed or there's an attempt to commit such an offense. So what is the specified offense here that made you believe that this falls within IDEX mandate?
It would have been where the procurement portion was. It was contraventions of PFMA and or fraud. Uh where the siphoning of the monies and or the that was the theft and the financial crime with the money laundering aspect and where the issues of the vetting and the appointments it was in the way that it was couched the capture of those systems and processes. So are those specified offenses as contemplated in 27 and 28?
>> Those are the offenses as set out in section 7 of the act that set out the offenses that ID uh falls within IDC.
>> That's a different question. uh 27 and 281 do not say any offense unless you read specified offense in 27 and 281 to mean any offense referred to >> in section 7.
>> In section 7. Is that how you read it?
>> Yes. Because we have no other offenses that that specified offense is the one that was deleted. Uh and they didn't >> So let's let's just be clear then.
So your determination was that because these offenses are offenses referred to in section 7 sub one capital A that is good enough.
>> Correct.
>> Even if they are not specified offenses as contemplated in this statute.
>> Yes.
>> As far as you are concerned, you still had a mandate to investigate them.
>> That is correct.
>> And that that was your understanding.
>> Correct.
>> Okay.
Thank you commissioners.
And you you then subsequently received I take it the section 2813 application from advocate Ramsami and then you authorized the preliminary investigation.
>> That is correct. and the 6th of of uh December.
And and prior to your authorization, is there any investigation that uh advocate Ramsi or member of her team undertakes or does she apply her mind to the section 30 20 section 27 affidavit and perhaps the law and then drafts the application in terms of 2813.
Meaning she doesn't seek to obtain documents extraneuous to the affidavit.
>> Correct.
>> So she works purely on the affidavit.
>> That is correct.
>> And forms a view.
>> Correct.
>> Now this morning as I think Mr. Banani indicated documents were forwarded to the commission as part of the subpoena requests made and and these these have been received.
We confirm in a moment we'll be turning to them.
[laughter] Yeah. Yes. No, I hadn't. I said I will be referring you to something. Uh the commissioners will recall that this morning I I referenced documents that were requested yesterday. I indicated that they had started trickling in. Um and and advocate Johnson read off some documents she had at hand and she indicated that they've been provided to us and and Mr. B line can confirm that the documents have been received and I would like that they should be included in your files. I pray they are now in file eight and um I'm interested in particular.
>> Should we put away those we were using this morning >> or not really >> judging by the time? Yes, I think so.
Considering we ending at 3. Yes, >> because there's quite a clutter in front. can well imagine. I apologize.
Uh yeah, except for the file containing the referral affidavit file 2, page 512.
Thank you, chief.
Thank you.
Thank you.
>> Thank you commissioners. Uh in particular, I wanted us to go to page 3282.
That is the authorization in terms of section 28 sub3 of the NPA act.
Uh Advocate Johnson, I need us to put a a finger on that page and that file.
Please don't close it. Uh and let's go back to the referral affidavit.
That would be file two, page 512.
Now in this affidavit I note at paragraph two >> sorry 512 >> 512 of file two help is coming >> this is file two >> why do we not have a page 512 >> I don't know the the referral affidavit.
>> Yes, I had given the file back. I'm not sure why I'm not seeing it.
>> Did you perhaps uh because of the clutter around you, did you take it out of the file?
>> No. No.
Don't Don't no file three.
May may I request your council to how I don't know how many copies they have available of the referral affidavit page 512 or file two and for your purposes Mr. Banana we will be flighting it so you'll follow it on the screen if you could.
Thank you so much.
>> Apologies. Thank you councel. My pleasure me m.
Now if if we go to paragraph two on this affidavit I see concerns regarding General Kumalo, General Lucaba, General Mondo.
You see that? I see that.
and over leaf at paragraph 4 that's uh regard the suspicion uh regarding manipulation of procurement processes at second sentence of that paragraph I see refs uh I suspect that general kumalo and other senior officers in crime intelligence in including Mondo and luchaba were manipulating procurement processes and processes to appoint and promote certain members You see where I'm reading?
>> Yes, ma'am.
>> If we drop further down in that paragraph, fourth line from the bottom, once again, it it speaks of persons being appointed to strategic positions and that such persons are suspected to be loyal and close to Kumalo, Lucaba, and Madono and those close to them.
Um I go over leaf at 5. I see reference to General Kumalo uh where where an allegation is made about the former minister of police minister.
And as we know paragraph six concerns uh General Lucaba and the theft that occurred at his home.
Paragraph seven once again it's Kumalo Lucaba and Maddo and I think that's about then we get to paragraph 8 and 9 and 10 which are concluding paragraphs of that affidavit you confirm that correct >> now this is the same affidavit that advocate Ramsi was armed with >> yes uh now let's get back to our file 8 page 32 282.
>> Got it.
>> Now, at 3282, that's an authorization signed by you. If you look at 3283, it's dated the 6th of December, 2024.
>> Correct.
>> And in the first page, you say I, Andrea Johnson, and you continue uh regarding your authority.
Um, and you indicate that you have reason to suspect that the following offenses have been um committed and you list them.
Am I am I reading your authorization correctly?
>> Yes.
>> So, these are all the offenses.
>> Yes. All the possible offenses.
>> Possible offenses.
Uh and you you clarify that over leaf at 3283 where you state that these have been committed or are being committed or attempts have or are being made to commit such offenses in an organized fashion by interelia. The persons or entities in the anextrous to to be the institution of the investigation in terms of secation to the activities of South African police services and crime intelligence and any other entity.
My my question is that conclusion you draw that that litany of crimes have been has been committed or being committed or attempts have been made that can only derive from the section 27 affidavit.
>> Correct.
What in the section 25 affidavit leads you to the conclusion that the crimes listed in there all or any have been committed or were being in the process of being committed.
the [snorts] uh the prevention and combating of corrupt activities act um falls within the ambit of of the allegations in paragraph 4 >> paragraph 4 noted not knowing what all would have happened in in the alleged placement and appointment of persons so you couldn't rule about the corruption.
The prevention of organized crime act would relate to paragraph 4 and likely points to the laundering of money out of crime intelligence.
Yes.
Um the national strategic intelligence act would relate to the vetting issues.
Okay.
And the Secret Services account relates to the allegation um of sorry. Um paragraph at the end of paragraph 3 the use of secret funds and then there is the further allegation uh in paragraph 5 some of the funds became taken unlawfully from the secret um secret funds account. So wherever there was relationship with the secret funds account uh that act becomes applicable.
the procurement fraud or uh the alleged procurement fraud under the public finance management act. The Financial Intelligence um the Financial Intelligence Center Act um also relates in part um just to get there.
uh to to to to paragraph 7.
Um yes. Um and then the contravention of the police act because of the appointments and the vetting that that is referred to and then the allegations of fraud, theft, forgery and uttering and or defeating um obstructing um the administration of justice which would relate in part to not in part in the main to the charges against uh General Luchaba.
>> Okay. Now um what would be the theft? What would relate to the theft here?
>> The theft was the siph actively siphoning money from the secret service account.
>> Okay.
>> And then there was the one um >> and the theuring suspect that funds became taken unlawfully from the secret service funds account under paragraph five.
>> Thank you. And the forgery and uttering That would have been in relation to manipulating of the procurement processes and processes for the appointment that there could be allegations there of forgery and uttering.
How how how do we start with manipulation of processes and then we suggest that there was forgery or that manipulation involved forgery because the process could have been manipulated in so many different thousand ways. How do you land on forgerying and uttering?
>> It is a possible offense.
>> Okay.
>> Yes. So, so perhaps if you would allow me to just say is that these are the offenses that one is looking at.
They are not open nor are they limited in terms of you go with what you have.
But if you don't put in the possibility, usually when you have fraud and or theft, they often does happen to be forgery and uttering. And so if you haven't listed that offense, it might become a challenge later on.
>> So this is a list of all possible crimes within the ambit of the 27.
>> Of the 27? Yes. And you so maintain?
>> Yes. Okay.
>> Please, please, please define forgery.
uh it is where in terms of for example with with the documents that someone would have forged someone's signature either in the procurement documents in the appointment documents or in the vetting documents it it purely relates to the forgery in terms of in >> and uh there was a basis for suspecting that this has this had a reasonable suspicion that this had happened.
uh reading it in its totality, >> would there be a reasonable suspicion that this had happened?
>> Correct?
>> On what basis?
>> That if did is there anybody is there anybody who ever suggested that documents had been forced for example that certain people had signed documents purporting to be other people >> that has come afterwards in the investigation. Yes.
>> Yeah. The question is at this at this point when you're writing this document >> yes >> what what were you relying on to >> get to the point where you say forgery and uttering is is is implicated. Uh uh I read it uh Commissioner Baloy in paragraph 4 where we talk of the manipulating of procurement processes and processes to a point uh and promote certain members to high strategic positions within the crime intelligence that in that manipulation they can be fraud, forgery or uttering.
Speaking for myself, I don't see how that takes you to forgery.
Remember, you've said here, you've said in the introductory part before you itemize the offenses you referred to, you have said you have open code reason, close code to suspect.
I don't see the reason for you to suspect in what you've said thus far. I just do not.
>> I I take your point. I That's what I've got.
>> Thank you. Thank you.
>> Thank you commissioners. Uh then just to conclude at 3283 having then itemized uh those crimes you you say those offenses are being committed or have been committed by I'm reading the second line persons or entities in the anexture. Now that annexure appears at 3284 over leaf that's the annexture.
Now we have General Kumalo there, General Mondo, General Lucaba and a list of others.
I know as I indicated to you uh that the section 27 affidavit specifically identifies General Kumalo, General Kumadondo and General Luchaba. We just did that exercise at the various paragraphs 2 4. I cannot find in the section 27 the persons identified under items 4 to 12.
Uh, and you recall that your testimony was all you had at the time was the section 27 affidavit does not reference any of the people listed from 4 till 12.
Where does your an extra get them from?
Johnson, I think the question is who gave you these names? They're not in the affidavit. We can we can look at it for the next hour. You will not find the names in four up to 12. Somebody gave them to you. Who gave you these names?
>> And under what circumstances?
>> This application came to me from from the prosecutor.
>> So So Miss Ramsay will have to tell us where she got these names from.
>> That would be correct.
>> Okay.
>> Did you inquire from her where she got the names from when you know that you only gave her the section 27 affidavit and you are quite familiar with it?
Do you engage and say who are these ones now? Where do they come in? How do they come in? They are not in the affidavit.
You are not conducting an investigation yet. So, you're not obtaining your own evidence. Where do these names come from? Did you have that engagement with her?
>> I didn't have that.
>> Why not? Shouldn't you have?
Because from what you are suggesting, it's like she looked at those three names and said, "No, three is not a good number. I prefer 12." and start like sarcing other names in there and you signed and you are happy with that. How come?
>> As I indicated, according to me, she only had the 27.
>> Yes.
>> And she would have then put together the 28.
>> Yes.
>> Yes.
>> Which we're looking at.
>> Yes.
>> And you know the 27 doesn't contain the names from 4 to 12.
>> That is correct. So why do you sign it in the form that it is where suddenly it includes a litany of other people who are not mentioned in 20 27 affidavit is sorry uh sorry uh council you refer to only the first four.
Yes.
>> The first three.
>> The first three.
>> The first three.
>> Yes.
Um I'm and sorry commissioner Baloy that I'm I'm now a bit slow and I don't intend taking the whole afternoon to >> well can I'm just trying to be helpful because >> I'm trying to figure out how she would have arrived at the names because their p their official capacities mentioned um but the names are not mentioned. I I take the point.
>> You you accept that it it it is not from the >> section 27 affidavit that she got the names.
>> You accept that someone must have g if they come from her, someone must have given her these names.
>> Correct.
>> Yes.
>> And I will find out.
>> And and you accept that at this point when she approaches you with this application, the investigation hasn't started yet. You gave her the affidavit.
She looked at it and she came back to you and said, "We need to have a preliminary investigation." So you accept at this point there's no investigation yet.
>> Correct.
>> All right. Thank you. My my my challenge is this Advocate Johnson.
You are authorizing an investigation into eight people who are not mentioned in the singular document you have.
They're not referred to you. There's no complaint regarding them.
But you're authorizing an investigation into them.
In terms of what section are you acting in so doing?
>> A conversation must have happened >> with who? That's a question >> with with advocate Ram Sami.
>> No, she's not conversing by her soul soul self. Who is she conversing with?
>> What I'm saying is she and I must have had a conversation.
>> Oh, so you are aware of that. I'm saying she and I must have had a conversation and I will follow that up cuz I don't have an independent recollection of a conversation and I will she would have to indicate then if she had a conversation with somebody else. I wouldn't just have blindly signed it without finding out from her.
>> Did you perhaps suggest these names to her?
>> No, these are not people I know.
Can can I say the the the the difficulty is that uh you you don't seem to abide the terms of this section 27 even if she proposes the names to you. You you are the final decision maker. You're the in charge. You're the one that's authorizing an investigation. It's difficult to conceive of a situation where she comes back to you and she gives you a list of names and you don't say, "No, we can't do that because it doesn't arise from this affidavit. We haven't started an investigation. So, I know you didn't get those names from an investigation. I know you didn't do that. We have at this point only this affidavit and and you don't say we are obliged to work with what we've got. We can't do whatever we feel like. It's difficult to to understand that you would be party if if this is her giving she gave you these names that you are happy to sign off uh a truly invasive investigation because your powers to hear evidence means you can call these people, you can look into their affairs.
That's what it means. and you do it outside the corners of the only document you have on which you could work with.
You the head are not in a position and you do not say to to your uh prosecutor that we are not doing that. We are bound by law. We are bound by rules to investigate that which is properly given to us. It's it's a misuse of powers.
Whether it comes from her or from you at this stage, this is a misuse of powers to take intrusive steps and action against people on this affidavit. You have no justification whatsoever on this affidavit to be looking into even by name Duvallo whoever is automotive engineer. you have absolutely no legitimate and valid basis to look into them. Maybe there is something to look at later on, but we are still at this affidavit stage where you are authorizing that they be called in that their affairs, their bank statements be looked into um and their lifestyles and everything and about them and they come they must come to interviews under threat of if you do not cooperate it's a criminal offense.
You're happy to do all of that when in fact the document the only document on which you rely to act as you do in this document um doesn't doesn't create a basis for it.
It it's to me it's an yet another instance where you in particular have misused your powers to go where you are not authorized to go. There's no legitimate basis to do this.
Do you want to comment?
>> I have no comment chair.
>> Thank you.
>> Advocacy law. you can clarify it or advocate Johnson can clarify it.
Maybe I'm too slow now. Before this authorization, I thought there's an application then the authorization or does the application come after >> uh from >> or maybe you can answer I had understood that what should precede this authorization is an application.
>> That is correct. Then this author this authorization authorizes the application.
>> That is correct.
>> Now can you show us where that application is because it may be that the questions you are being asked >> the names were in the application.
>> I said that it's not part of I don't see it here and I will ask that they make the the application available.
>> Okay. I'm not sure why the application is not with the authorization.
>> The one that I see here, I suspect you're going to be dealing with it later, so I don't want to go there.
>> Yes, that's that's a different authorization now. Yes. It's not the 2813 authorization. Thank you, >> chair. It's 1502, as I'd indicated.
Let us adjourn and resume at 9:30 tomorrow. Thank you.
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