The suspension by President Mbeki of NPA head Vusi Pikoli on 24 September 2007, on grounds of irretrievable breakdown in his relationship with the Minister of Justice, spawned a frenzy of media speculation about the ‘real’ reasons for this action. Predictions about dire consequences for the country followed and, given the recent issuing of search and arrest warrants for National SAPS Commissioner Selebi – and the withdrawal of the arrest warrant after Pikoli’s suspension – conclusions were drawn that Pikoli was suspended to protect Selebi from prosecution. The suspension was linked by some to other recent events causing media disquiet, such as the alleged tapping of the cellphone of Sunday Times editor Mondli Makhanya, Various accusations against the Presidency followed, including that it had lied to the public. It was also accused of ‘depravity’ and of bringing the country to its most ‘dangerous and perilous moment’ (there is no mention of the fact that tools to intercept cellphones are available to private persons as well as the State). What is striking in much of the comment is a general lack of critical analysis by significant sectors of the media which takes into account easily accessible facts about the performance of the Scorpions since the unit’s establishment eight years ago, which places the suspension of Pikoli in perspective.
Malicious prosecutions and trial by media
In 2000 this newly formed unit (then known as IDOC) brought a malicious prosecution against two highly respected and competent black police members in kwaZulu-Natal, Director Eric Nkabinde and Captain Sipho Mbele, both of whom had long, unblemished, service records. Selective leaks to the media followed, together with strenuous efforts by the unit to delay the court case. Under cross examination in the court the then KZN head of IDOC, Advocate Chris Macadam, who was responsible for bringing the charges against the men, not only admitted that they were without any substance, but conceded that the laying of charges, and the media publicity surrounding them, were effective in imputing in the minds of the general public the guilt of those so charged, even if they were subsequently found innocent.*
The two police members were totally exonerated by the court, and the presiding senior magistrate queried whether it was not the man responsible for the prosecution who should have been charged for defeating the ends of justice. One of the accused was then the most senior black detective in the province : The strategically-timed prosecution cost him a pending promotion, and dealt a mortal blow to the transformation of policing in kwaZulu-Natal. These two men subsequently sued the State successfully for wrongful prosecution.
Undeterred, another malicious prosecution, that of magistrate Ashin Singh, followed. Singh had initially been a member of IDOC but had incurred the wrath of Macadam by, among other things, pointing out that the unit had arrested the wrong people for the massacre in Richmond which followed the assassination of Sifiso Nkabinde (he was subsequently proved right). At one of the court hearings of Nkabinde and Mbele
*See ‘The Scorpions : Trial by innuendo – and the media’ and report on Richmond Tavern Massacre (both 2003) at www.violencemonitor.com
Singh had produced a tape recording which appeared to confirm that the charges against them had been fabricated. This tape was among the items subsequently seized from Singh’s home after it was surrounded by a heavily armed SWAT team. It was never heard of again!
The prosecution of Singh was led by Advocate Billie Downer, whose star witness, Macadam, proceeded to contradict himself under oath. The case came to an abrupt halt when the presiding magistrate ordered a permanent stay of prosecution because those responsible had acted unlawfully. Singh opened a case of defeating the ends of justice and leading false evidence under oath against those involved in his prosecution, but the office of the DPP refused to prosecute. He then applied for permission to bring a private prosecution but the acting judge presiding in the matter ruled that a private person could not bring a prosecution against State prosecutors. In 2005 Singh announced that he was suing the NPA for R3million, and that case is still pending.
Advocate Macadam is still with the Scorpions, As far as can be ascertained, no action has been taken against him, and he continues to occupy an influential position. He is by no means the only member of Scorpions staff of highly questionable background.
Who runs the Scorpions?
In January 2005 Advocate Pikoli assumed directorship of the NPA, in which position he bears overall responsibility for its constituent units, including the Directorate of Special Operations (DSO/Scorpions), which unit is headed by Advocate Leonard McCarthy. A key question arising from his recent suspension is whether he is actually in control of the unit.
The 2003 Monitor report on the Scorpions detailed the way in which numerous Old Guard elements – including members of the apartheid security branch – were quick to manoeuvre themselves into key positions when the unit was established. Under apartheid members of this elite arm of the SAP, while associated mainly with the worst forms of overt repression, were also deployed in other sectors of policing (SANAB, commercial crime), and were highly skilled in all manner of propaganda and disinformation in general.
Various events since the release of that report have confirmed the continued presence of the Old Guard, and have also highlighted the use of highly problematic private security companies by the Scorpions, and the alleged role of persons who appear to have links with foreign intelligence agencies. For example :
• In its submission to the Khampepe Commission, appointed in 2005 to Inquire into the Mandate and Location of the DSO, NIA claimed that the unit had been infiltrated by foreign intelligence operatives, including through using private security companies with links to such overseas structures;
• Private security companies were used in raids carried out on Jacob Zuma’s offices in the presidency in August 2005. These companies would thus have had access, through Zuma’s computers, to highly confidential government information. In October 2005 the spokesperson for the Scorpions reportedly told the media that these companies employed ‘undesirables’; he could not, however, say whether the contracts had been cancelled, or had expired. The raid on Zuma’s house which took place at the same time was apparently ordered by Advocate Thanda Mngwengwe, who, co-incidentally, was the prosecutor in the Nkabinde and Mbele case, Mngwengwe, who was then in an Acting capacity, has since been promoted to head Scorpions Operations, despite apparently having made a serious mistake in executing a warrant for the search of Zuma’s house, leading to goods seized being returned to him
• The Scorpions allegedly sub-contract work to private security companies with links to apartheid security structures and hand over their work to the Unit, and might be paid a percentage of the value of, e.g. a drug bust. In assisting with investigations they have access to highly confidential information which could impinge upon State security
• According to media reports, the former head of security at ACSA at O R Tambo airport, and ‘self confessed’ British intelligence operative, Paul O’Sullivan, who features prominently in the investigations into Selebi, was claimed by South African intelligence sources to have a ‘grossly inappropriate’ relationship with certain Scorpions investigators, even to the extent of doing work they should have been doing
• In May 2007 the infamous Browser Mole report, linking Jacob Zuma with a network of individuals assisting him to overthrow Mbeki was leaked to the media. It had already been rejected by State intelligence organs as a fraud, but was accepted by the Scorpions. It was subsequently reported to be the work of former apartheid and foreign intelligence operatives. One of the persons linked to this report had also allegedly been involved in another controversial report during the tenure of the former NPA head, Ngcuka, linking Zuma to Mozambiquan druglords.
Pikoli conceded, following on the raids on Zuma home and office, that they ‘might have been a bit over the top’, in their use of men armed with assault rifles (which, judging from a similar raid on the home of Ashin Singh, is not an isolated event). He was also reported not to have known about the use of private security at the government office (this raid was eight months after he assumed office), and promising to investigate this aspect. He subsequently also undertook to investigate whether it was true that O’Sullivan was using Scorpions computers, which would also constitute a serious security breach.
Pikoli seems to have been unable to stop the leakages from his unit to the media despite the criticism by the Kampephe Commission about its making public information about investigations, with the attendant consequences for the rights of those under investigation.
The case against Selebi
On 10 September 2007 the Scorpions obtained a warrant to arrest Selebi and, four days later, another, search warrant. These warrants were reportedly linked to charges of racketeering, corruption, and defeating the ends of justice. The issuing of these warrants followed on more than a year of selective media leaks about investigations into Selebi for his alleged connection to organised crime.
It seems that investigations involving Selebi started after the Scorpions were handed a ‘secret dossier’ linking him and other police members to Mafia-type criminal syndicates, together with a man described by Selebi as a ‘friend’, Glen Agliotti and Clinton Nassif, the former head of security for murdered mining tycoon Brett Kebble.
The dossier in question appears to have been the work of former British intelligence operative Paul O’Sullivan, who may or may not still be linked to foreign spy networks. By his own admission, O’Sullivan has a grudge against Selebi, who he blames for his having lost the ACSA contract (it seems, however, that he did not receive the requisite security clearance). O’Sullivan is said to be the source of the allegation that Selebi received a R50 000, 00 bribe and has an overseas bank account in which to stash his ill-gotten gains.
The case against Selebi is intertwined with investigations into the murder of Brett Kebble in 2005, and is part of the Scorpions ‘Bad Guys’ project. It is alleged (by those accused of the murder!) that Kebble had planned his own death for insurance claim purposes, and that Clinton Nassif had recruited the killers (three bouncers – also said to be police informers) and paid them with money provided by Agliotti, who is said to have controlled JCI slush funds. It is O’Sullivan who took statements from possible witnesses in this matter on behalf of Scorpions investigators. The DSO was unable to respond to media enquiries about a non-staff member taking statements in this matter
Much of the media hype around this case is remarkably thin on facts and thick with speculation, but, from these reports, the case against Selebi appears to rest largely on supposed evidence provided by Agliotti and Nassif. Agliotti is the pivotal figure in the charges involving Selebi (he is also allegedly a police informer). He is named in media reports as implicated in international smuggling and drug dealing in South Africa, and is apparently believed by the Scorpions to have been a conduit for funds from Kebble’s mining company JCI to Selebi. Agliotti has been arrested for the Kebble murder, and has reportedly been offered indemnity in this matter in return for spilling the beans about Selebi. While he is said to have been co-operating with investigators, there are conflicting reports about whether or not he had made a sworn statement about Selebi implicating Selebi in wrong doing, or is prepared to do so.
Agliotti and Nassif are described as friends and fellow drug peddlers, both are implicated, with others, and both have been charged, in a R250million drug case. Nassif has apparently plea bargained, agreeing to give evidence implicating Agliotti in both the drugs case and the Kebble killing in return for a suspended sentence in the drugs case. Nassif, too, is said to be a police drugs informant, who allegedly used that status to move his own drugs, and is linked to a variety of other criminal offences (for which he reportedly wants indemnity), including insurance fraud and attempted murder.
Putting the Selebi case in perspective
Once the trees have been stripped away so that the wood is visible the case against Selebi looks very weak, relying as it appears to do on one man who is described as a crime kingpin (Agliotti) and another who has himself, in his plea bargain, confirmed his involvement in drug dealing (Nassif), and whose knowledge of the alleged criminal relationship between Agliotti and Selebi appears to rest on hearsay.
Experienced police members confirm that it is not difficult to construct a case against an accused, even if innocent, in order to obtain a warrant of arrest. After all, Mbele, Nkabinde, and Singh were charged despite court proceedings showing the lack of substance in the charges The point has been made that the Scorpions have on more than one occasion brought malicious prosecutions. They can also point to their success in obtaining a conviction in the high profile Schabir Shaik case. One swallow, however, does not make a summer and, given their resources, and rampant organised crime and corruption in South Africa, their track record leaves much to be desired. What should be a matter of grave concern to the public is the extent to which their cases appear to rely on plea bargaining and deals around indemnity for people accused of extremely serious cases such as murder and drug dealing. Making a favourable impression in court is no guarantee that the testimony is honest, since psychopaths are known for their ability to lie with aplomb!
Given the national and international repercussions of charging the national police commissioner, who is also the head of Interpol, it is perfectly understandable that the government should take steps to check on the status of the case – especially in the light of the well known antipathy between the accuser and the accused linked to the turf war between the Scorpions and the police.
There seems little doubt that the involvement of the Presidency stems from the breakdown in the relationship between Pikoli and the Minister to whom he is constitutionally bound to report. The strained relationship between them is a long standing one, with the President having had to intervene on previous occasions. It appears occasioned by Pikoli’s having failed to keep the Minister informed about high profile cases with implications for the stability of the country, including the 2005 Zuma raids – despite Pikoli himself having conceded, when questioned by the Kampephe Commission, that the Minister of Justice could call upon him to explain why materials had been seized and the reasons for prosecutions.
The fact that there has been no progress in implementing the proposals of the Kampephe Commission that the Scorpions should remain within the NPA, but that their investigators should fall under the Minister of Selebi suggests that reports of Pikoli’s unwillingness to engage, not only with the Minister of Justice, but also with the Minister of Safety and Security, are correct. It also seems that Pikoli wishes to fly in the face of the Commission’s findings, and pursue an agenda of autonomy for the unit.
Only time will tell how strong the cases against Selebi and Zuma are. However, what is obvious is that the well-established Scorpions tactic of trial by media has succeeded in fuelling deep divisions within the ruling party. That, presumably, is purely a co-incidence.