Macambini, Dubai And The Office Of The Premier KZN : Answers Please Mr Premier

The motives for the orchestrated protest action by thousands of Macambini residents on 4 December, which saw them blockading the main roads immediately north of the uThukela river, must be questioned. According to the owner-in-law of the land, the Ingonyama Trust, it cannot be leased or alienated without the formal consent of the Traditional Council concerned. Why then is the Traditional Council, headed by Inkosi Khayalihle Mathaba, who rules the area with an iron fist, protesting instead of simply declining the Dubai offer?

At the same time, the provincial government has important questions to answer, especially about who stands to benefit from the Dubai investment – and whether the provincial government’s failure to take action against a man who has broken the law with impunity has anything to do with alleged shared business interests with anyone associated in any way with government.

The proposed development in context

The Macambini area has suffered high levels of political violence, intimidation and crime for almost twenty years.  In the 1990s countless people were killed, or driven from the area, with the TRC making a finding of gross human rights violations against traditional leader Mathaba.

While violence raged in Macambini, Mathaba directed people to settle, illegally, on adjoining Mangete farms owned by Dunn descendants, with the farmers enduring a campaign of terror – the burning of sugar cane, and innumerable attacks. Before an Interdict against Mathaba and others was to be finalised in 1996 he lodged a land claim on behalf of people who had been moved from Mangete in the 1970s to the Wangu area, which was not then part of Macambini. This claim was settled, albeit irregularly, in 2002, but up until the present time the illegal occupants have not been given the land which was purchased for them – including seven farms in Mangete which, like Wangu, remains under the control of non-claimant Mathaba. The Interdict, ordering the occupants off the land, was finalised in 2004. The First Respondent, Mathaba, and the illegal occupants are in flagrant disobedience of Order, placing them all in contempt of court.

A climate of extreme political repression exists in Macambini, with the persecution of ANC activists having continued up until the present time. In 2004 Walter Buthelezi obtained a High Court Interdict against Mathaba, who threatened him with death for placing ANC posters. Prominent activist and local government candidate Mrs Sibongile Zungu was threatened by Mathaba in 2005, prior to various attempts to kill her, and a number of other ANC activists have been killed in recent years. Why has the ANC as a political party not taken steps to prevent attacks on people who risk their lives for it, and why has it, as government in the province, failed to take action against Mathaba despite his having broken the law?

A deafening silence

Following gross intimidation of voters and election officials in Macambini during the 2006 local government elections, affidavits were made with a view to disputing the election results. The regional structures of the ANC refused to take the matter further, despite its presumably having been in its interest to do so.

In May 2006 a letter was addressed to MEC for Local Government, Housing and Traditional Affairs, Mr Mike Mabuyakhulu, detailing Mathaba’s contravention of the legislation governing traditional leadership and the fact that he was in contempt of court. The MEC was requested to take appropriate action. Despite follow up letters, and an appeal to the relevant national minister, no response was received.

When threats to Mrs Zungu and criminal attacks on Mangete farmers continued, a letter was addressed to ANC leader Ndebele in December 2006, referring to matters raised with Mabuyakhulu, and the MEC’s non-response. Information was provided about paramilitary training in the area, and its potential for destabilisation.   Reference was made to allegations of proposed business ventures in the area involving Mathaba and at least one person close to the provincial government, raising the issue of possible corruption. The premier was warned that if no action was taken more blood was sure to be spilled. There was no response.

On 26 February 2007 well armed men attacked the Zungu home, shooting and throwing incendiary devices. The large house was razed, and two grandchildren were injured by shrapnel. Miraculously, no one was killed, but the family was left with only the nightclothes they were wearing. They relocated to a room in nearby Mandeni, but the threats continued – apparently because family members recognised attackers, including Mbongwa Maphumulo. Maphumulo is an induna of the chief, and a ward councillor. He was recently found guilty of possession of three unlicensed firearms and sentenced to 15 years imprisonment.  Mrs Zungu had campaigned tirelessly for the ANC despite being under threat, but appeals to help her made to the leadership – including the Women’s League and NEC – fell on deaf ears.

In July 2007 a letter was faxed, and sent registered mail, to the Speaker of the Legislature, Mr Willies Mchunu, drawing attention to the unlawful conduct of Mathaba, an MPL, and requesting an enquiry. The registered letter was never collected from the post office and was returned to sender. No response was ever received to the fax.

When, in April 2008, the rumours about the Dubai investment were confirmed, an open letter to the premier, reiterating previous concerns, and asking a number of questions – including about local financial stakeholders – elicited a prompt response from his office. A meeting with Director General Mbanjwa followed. Mbanjwa provided various undertakings, including that that no Macambini resident would be dispossessed of land and that the illegal occupants on Mangete farms would be given land due to them in terms of the claim settlement. Despite an assurance of regular progress reports, and a follow up letter, nothing further was ever heard from the office of the premier.

Answers please Premier Ndebele

There is a perception that the government of this province has continued to turn a blind eye to gross human rights violations and unlawful activities in Macambini and Mangete because of vested financial interests on the part of person/s associated with it. Whatever the truth, its handling of the Dubai-investment matter has provided a pretext for increased destabilisation in an area which is a haven for criminals, and seems awash with guns.  Premier Ndebele owes the public a full explanation:

  1. Is it true that Mathaba travelled to Dubai with a person or persons from his office when talks were held with investors
  2. Is it true that Mathaba was given a large sum of money and, if so, where did this money come from?
  3. Who exactly are the local stakeholders in the proposed R44 billion development and are any persons currently serving in government among them?

TRC/Court records cited

  • Findings against Mathaba in TRC Report Volume 3
  • Water Buthelezi Durban and Coast High Court Interdict 3565/2004
  • Mangete land invasion details in Durban and Coast High Court cases 6212/03 and 1931/96 (Interdict)

Privatised Policing And The Erosion Of State Power

Private security companies have an important role in fighting crime but allowing them to take over certain policing functions is fraught with potentially serious problems. This increased privatisation of policing also erodes the power of a new democracy which has yet to consolidate its hold over its security organs.

Policing is a public institution, funded by taxpayers, to whom, through parliament, it is ultimately answerable. Imperfect, and difficult to implement, as the system may be, the SAPS can at least be called to account. They are also subject to an oversight body – the Independent Complaints Directorate. While it is true that the ICD is hopelessly under-resourced, there are moves afoot to improve its functioning. There is no denying that there are serious problems with policing (which are probably worse in some areas than others) but the deployment of security personnel will not provide an incentive to improve performance. In fact, it may have quite the opposite effect, and allow malfunctioning management and members to simply pass the buck.

In contrast, private security companies exist to make profit for their owners, and the public does not have the right to the same degree of scrutiny over their affairs as it does over policing. The only public safeguard is that the industry is subject to regulation by the Private Security Regulatory Authority (PSIRA) which falls under the control of the Minister of Safety and Security. Given the sheer size of the industry, and the fact that a large sector of it is unregistered and operating illegally, PSIRA as it is currently structured and funded lacks the capacity to ensure that the industry is adequately regulated, including in terms of gun ownership.

It must be stressed that there are many players in the security industry who behave in an exemplary manner. However, simply because companies are registered with PSIRA, and their staff do not have criminal records, does not necessarily mean that they behave honestly. The matter of a number of apparently registered security companies allegedly overpaid by the eThekwini municipality raises serious questions about contracts entered into between government bodies and security companies, and also shows how such practices can militate against transparency in government.

According to press reports, an audit report has shown that around R15 million is owed to the municipality by these companies, but it is refusing to divulge further details, using the pretext of possible criminal action against the companies concerned. Since public expenditure is involved, the truth must ultimately out, if necessary through the courts. In the mean time, will these companies be eligible to perform policing duties?

The lack of transparency in security company operations is exacerbated by fronting. Although difficult to prove, there are widespread, and apparently well founded, allegations of fronting (through, e.g. family members) involving members of the SAPS and certain politicians.  Presumably security companies involved in policing work will be paid for it, so questions arise about how those participating will be selected – and how the risk of cronyism and nepotism will be minimised.  What type of oversight will operate, given that the performance of police management leaves much to be desired?

Even assuming that only the services of truly professional and above board security companies are utilised, the increased privatisation of policing can only weaken, rather than strengthen, a state which is structurally still in the process of replacing its apartheid foundations.  Short of a revolution institutions do not change overnight, so despite fourteen years of democracy the present government does not exercise the type of control over its security apparatus that is characteristic of a strong state.  The creeping privatisation of security can only weaken it further – especially as the process of transforming the security industry has been slow, and foreign ownership remains a contentious issue.

If there were a will on the part of SAPS management the shortcomings which the involvement of the private security sector is meant to address could easily be remedied without changing the current role of security companies. There are already plans to increase the size of the SAPS with thousands of new recruits. When there is a pressing need to train so many serving police members in securing crime scenes, and in taking proper statements, why train security personnel in this work?  Perhaps the question which should be asked is who really stands to benefit from privatised policing?

APARTHEID LIVES ON : FORCED REMOVALS IN EMACAMBINI

During the apartheid years millions of people were forcibly removed from their ancestral land for apparently ideologically driven reasons – homeland consolidation. This ideology, however, was used to disguise the vested economic interests of the apartheid state. In the new South Africa forced removals are dressed up in the ideology of supposed development, but are still driven by the economic interests of the elites. This strategy was used to drive people off land in Mabaso, northern KZN, and is now being used in eMacambini, iLembe region. During June 2008 a Dubai-based property developer, Ruwaad Holdings, presented a draft plan to the KZN cabinet about a proposed $2,5 billion tourism project on 16 556ha of land in this area and, although it is not known exactly what agreements have been reached, it was announced that this massive development would be ‘fast-tracked’. eMacambini residents have been kept in the dark, despite the fact that thousands of them will lose their homes and many their sugar cane plantations. The office of the Premier must explain why deals have been done behind their backs – and why undertakings given that no people will lose their land have not been honoured.

When, in April 2008, long-circulating rumours about this investment were confirmed, an open letter, copied to the media, was sent to Premier Ndebele, pointing out, among other things, that

• The local traditional leader had been implicated by the TRC in gross human rights violations, and that allegations of his involvement in violence – and paramilitary training – have continued to the present time
• The same leader had directed people to settle, illegally, on nearby Mangete farms owned by descendants of John Dunn and his Zulu wives, against whom a campaign of terror – the burning of their sugar cane, and countless criminal attacks – was waged
• Following the settlement of a land claim by persons moved from Mangete in the 1970s the claimants were not given the land allocated to them – seven small farms and a large commercial farm – which land remains under the control of Inkosi Mathaba who was not even a claimant. Most of these claimants continue to live, illegally, on Dunn descendant farms, where they are subject to a High Court Interdict. Mathaba, the First Respondent, is in breach of this Order and hence in contempt of court. The claimants desperately want their land, but have been subject to severe intimidation for demanding what is rightfully theirs
• Attacks on ANC activists have continued up until the present time, and there is no freedom of political association whatsoever in the eMacambini area. Without freedom of political activity and association no true development can take place

This letter drew an immediate response from the office of the Premier, and a meeting with the Director-General, Dr Mbanjwa, took place on 29 April. Dr Mbanjwa claimed to be unsure of which specific areas were earmarked for inclusion in the proposed development. He promised to look into the matter and he provided the following assurances

• No eMacambini resident would be dispossessed of land
• The provision of land and housing to persons directed to settle on Mangete land would be prioritised and successful claimants would be given land in eMacambini to which they were entitled and
• processes would be initiated to democratise the area with a view to empowering local residents, safeguarding their human rights and facilitating their participation in the planned development

At its request, more background information about the area was subsequently supplied to the Premier’s office and, when nothing further had been heard, a letter was sent on 22 May asking for a progress report. There has been no movement in implementing any of the assurances given but it is clear from media reports that at least ten thousand people will be moved to make way for the new city – to be built on valuable agricultural land – despite the assurances given by the Premier’s office. Only at the beginning of July did the provincial government hold a public meeting at Macambini. People were not told where they would be moved to, but were promised compensation and jobs. Since the verbal assurances given at the April meetings have been dishonoured people have no reason to believe these promises. Although it was announced that the provincial government would work with representatives from the affected area the climate of intense repression in the area will ensure that only those selected by the traditional leader will participate and no democratic decision making will be permitted.

The plight of the illegal occupants on Mangete farms is particularly invidious, since it is only out of compassion that the farm owners have not implemented the court order and evicted them. Not only is the claim settlement land being withheld from them, but that given to them in the 1970s – Wangu – has reportedly been included in the land made available to Ruwaad Holdings. Mathaba is well aware of this fact, since he himself alludes to it in a sworn statement in Durban High Court Case 1931/96. Is it simply a co-incidence that areas in which residents were driven from their land by violence in the 1990s – Wangu, Owabede and Lamboti – now apparently form part of the new Ruwaad Holdings empire?

The actions of the provincial government are in breach of the Constitution which states (Sec 25,1) that ‘No one may be deprived of property except in terms of law of general application and no law may permit arbitrary deprivation of property’ Deals struck with Ruwaad Holdings behind closed doors are lacking in the transparency demanded of government. Both the Premier’s office, and the Ingonyama Trust – which is the landowner in law of all former homeland land – owe the people of eMacambini, and the general public, a full explanation of exactly what agreements have been entered into relating to eMacambini land, including the identities of local beneficiaries of this deal. We also need to know whether anyone who is currently part of any government structures has a vested interest in this neo-imperialist venture which seems set to benefit a select few at the expense of thousands whose homes and livelihoods are in jeopardy.

HOW REAL IS THE THREAT OF POST-POLOKWANE VIOLENCE IN KZN

Following the momentous events at Polokwane speculation abounds about the possibility of violence, with comparisons drawn between the situation in South Africa and that in Kenya. As elsewhere in the country there are deep divisions in the ruling party in KZN, fuelled by allegations of gross irregularities in internal party processes leading up to the nominations for party leadership, and the selection of voting delegates. While the threat of inter-party violence around the 2009 election remains, there are also fears of increased levels of targeted intra-ANC violence, and diffuse public violence. The manner in which the organisation – both in and out of government – deals with the polarisation within its ranks, and the circumstances surrounding it, has crucial implications not only for the party and for the country as a whole.

Background context :
Jacob Zuma’s victory is attributed to a variety of factors : Thabo Mbeki is perceived as being out of touch with party colleagues and supporters, and as having used the Scorpions to pursue a vendetta against Zuma, There is resentment about some of the people he appears to rely on, and he is accused of being power hungry – despite having given no indication that he would wish to serve a third term as president. In contrast, Zuma’s victory is attributed to his being in touch with people, a victim of what is seen as a highly selective Scorpions witch hunt, and a counter to Mbeki’s supposed attempt to cling to power.

However, there are serious allegations that the victory was far more than a groundswell of public support for Zuma, and that his campaign was a carefully crafted one, run along scientific lines, using huge financial resources (Zuma supporters allege Mbeki’s use of State resources in his own campaign). There are also claims that the campaign was not necessarily about ensuring that Zuma becomes President, in that some of those involved, who may not be ANC members, are merely using him as a pretext to pursue their own agendas. In other words, the struggle is not simply between two individuals : It is about the fundamental structure and direction of the ANC. There are honourable people, with impeccable ANC struggle credentials, in both of the ‘camps’ (broad alliances). That there are also sundry others, with extremely dubious backgrounds, is relevant, given the threat of violence.

Specifically, it is alleged by those who claim that the Zuma victory was not an accurate reflection of support for the candidates that in KZN a process of excluding Mbeki supporters, or those who refused to take a stand for either candidates, from local government and ANC branch structures has been underway for the past three years – and that similar tactics were used elsewhere in the country. Apparently these irregularities were drawn to the attention of the party’s leadership but no action was taken. It is further alleged that Mbeki’s dismissal of Zuma as Deputy President – which undoubtedly fuelled anti-Mbeki sentiment – was misrepresented to rank and file ANC supporters, in that there had been extensive consultation which had included Zuma prior to the shock parliamentary announcement. It is claimed that the provincial leadership had been fully briefed, and had been tasked with setting the record straight – but that it had failed to do so.

The nature of the threat:
Public threats have already been made by Cosatu leadership in KZN that protest action will accompany Zuma’s court appearance later this year. Fears have also been expressed about the outbreak of violence if Zuma does not become President (if, for example, he is convicted). Threats of this nature obviously hold ominous implications for the criminal justice system. While ANC leadership, including Zuma, has spoken out against these threats, it is not clear whether all their supporters will heed their call. There are various independent reports of accessibility of weapons. Strong leadership of the SAPS will be called for, given that the loyalties of members of the police – and the SANDF which acts in support of police – are divided.

Of great concern are alleged threats to persons, in different parts of the province, who have taken a pro-Mbeki stand, and who believe that justice was not done at Polokwane. They intend to ensure that debates are carried forward in party structures and congresses, and claim that some of them are under threat of death. They fear that persons associated with the volatile taxi industry – well armed and with easy access to trained hit men – may be used to eliminate them.

What’s to be done?
The allegations and counter-allegations which emanate from a range of influential ANC supporters may or may not be correct, but they fuel perceptions which may lead to action. .

Fortunately there seems to be a consensus at leadership level that, in the interests of stability, the Mbeki and Zuma ‘camps’ should be seen to be working together to ensure a smooth transition to the change of government in 2009. In this regard it is important that those who are impatient for the implementation of ANC policy decisions take into account delays occasioned by inevitable legislative and budgetary constraints, and not make unreasonable demands which cannot be lawfully met. Compromises from both sides will probably be called for, and President Mbeki will need to heed bona fide grievances of his opponents. The expertise of old colleagues trusted by both Mbeki and Zuma should be utilised. The full circumstances of Zuma’s removal from the Presidency should be aired, given the resentment it continues to generate. Transparency around party campaign funding is also called for.

Polarisation at all levels must be addressed. Those who wish to carry debates about the legitimacy of the Polokwane process forward in their structures and congresses perceive what has happened as a breach of the democratic culture of the ANC which should be preserved at all costs. It is important that their voices be heard without their having to fear for their lives. In the interests of transparency – and reconciliation – their allegations should be subject to thorough, in-depth inquiry, as should their claims of victimisation and death threats.

It is not enough to simply tell people to desist from violence. This province is littered with the corpses of people who died while their leaders preached peace. Actions speak more loudly than words and sanctions must be implemented against anyone making threats of violence (itself a crime). The issue of stockpiled guns is long overdue for urgent attention.

The nature of the threat – to human lives and good governance – transcends narrow party political interests, and South Africa looks to the new ANC leadership, and that in government, to resolve their differences peacefully. Close public scrutiny and constant vigilance is essential – including through holding political leaders strictly accountable for the conduct of their followers.

THE SCORPIONS, CONTINUED : IS THERE MORE TO THE PIKOLI SUSPENSION THAN MEETS THE MEDIA EYE?

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.

THE SCORPIONS : A FRANKENSTEIN MONSTER?

THE SCORPIONS : TRIAL BY INNUENDO – AND THE MEDIA?

Like a bolt out of the blue, in June 1999, SAPS Director Eric Nkabinde’s planned trip to the USA, to attend a specialised training course, was cancelled at the eleventh hour, causing great inconvenience. The SAPS had received a letter from Advocate Chris Macadam, then head of the newly-formed Scorpions in KwaZulu-Natal, informing them that Nkabinde, the most senior black detective in the province, was about to be arrested. This letter was the first that Nkabinde had heard that he was under investigation, and for several months his lawyer attempted to obtain details. He was unsuccessful: Although he was told, verbally, that there were no charges, nothing was put in writing. At the same time, in August 1999, defamatory articles appeared in two newspapers alleging that police members, including Nkabinde, were under investigation. On the day these articles appeared, MacAdam issued a signed, joint statement with police PRO officer Bala Naidoo claiming that the reports were ‘blatant’ lies – and contradicting the contents of the June letter to police management. Finally, at the end of November 1999,  as he was about to be appointed to the key position of head of detectives in KZN, charges were brought against Nkabinde, and Captain Mbele, whose team had made stunning breakthroughs in the Richmond violence. These charges related to their alleged handling of the Richmond investigations. Almost immediately counsel for the accused was obliged to place on record apparent attempts to obstruct the cause of justice. The fact that the case against these two police members was heard, and finalised, in June 2000 was due to the efforts and perseverance of legal counsel for the accused, since the Scorpions used various tactics to attempt to delay its finalisation  – which was hardly surprising: Under cross-examination, Macadam conceded that there was no substance in any of the charges. In the Judgment, the two accused were totally exonerated, Mbele was praised for the quality of his Richmond investigations, and the presiding senior magistrate queried whether it was not Macadam who should have been charged for defeating the ends of justice. This trial, which had almost ruined the careers of two distinguished and competent police members, showed the Scorpions to be guilty of improper, unethical and unlawful conduct, at huge State expense.

 

Under cross examination during the trial, Macadam conceded that the laying of charges, and 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. 

 

In other words, the use of trial by media has been integral to the tactics used by the Scorpions since their inception. It is unfortunate that the same tactics, i.e. a selective use of the media rather than normal criminal investigative procedures, as laid down in the Criminal Procedure Act,  are now being used on politicians – not because they should not be investigated (of course they should, if there are grounds for believing they have engaged in criminal activities) but because any attempt now to ask important questions about the composition, modus operandi and achievements of this unit are likely to be interpreted as intending to protect them. Let it be made perfectly clear that

 

  • The Natal Monitor has repeatedly criticised the Scorpions and      has been calling for over three years – both in public statements and      correspondence with Ministers and (ironically) the Presidency – for a      critical re-appraisal of its role in the criminal justice system. In fact,      it seems to have been the only body with the temerity to challenge them.
  • The Natal Monitor holds no brief for Deputy President Jacob      Zuma or any other politician, but believes that persons accused of crimes      are innocent until proven guilty and should be subject to acceptable just and fair  procedures which include being charged,  if there is sufficient evidence, and appearing in court before being      subject to what can be scurrilous media speculations. In other words, the Scorpions’ cavalier approach to the      provisions of the Criminal Procedure Act is completely unacceptable,      regardless of the status of the accused.

 

What is disturbing is the invariable and uncritical use of the term ‘elite’ in references to this unit, without any penetrating questions being asked about whether it actually deserves the accolades heaped upon it. Who are the Scorpions, and what exactly have they achieved that their praises should be sung so loudly? Are the emperors’ clothes really as splendid as the besotted media and general public, seem to think?

 

 

THE SCORPIONS : OLD WINE IN NEW WINESKINS?

The Directorate of Special Operations, known as the Scorpions, operates in terms of the National Prosecuting Authority Act of 1998 and its 2000 amendment, which make provision for the establishment of Directorates, including one with a ‘limited investigative capacity’ to investigate serious criminal activities conducted in an ‘organised’ manner [defined in Sec 7(1)(b)] and, if warranted, instigate criminal proceedings. The Investigating Directorate operates under the control and directions of the office of National Director of Public Prosecutions (NDPP), and is responsible to a ministerial co-ordinating committee (Section 31). The unit possesses awesome powers of search and seizure, and may conduct investigations at which proceedings take place in camera. In terms of Section 28, wide powers are given to individual investigating directors, or persons so designated, including insofar as determining procedures followed at investigations, and recordings thereof, are concerned.

 

Modelled on America’s FBI, recruits began training in America (the first non-Americans allowed to access its training programme) and Scotland Yard in England in 2000. Well before then, however – by the end of 1998 – employees of the Department of Justice, and police members seconded from the SAPS, started work, including in KwaZulu-Natal. The salaries paid to Scorpions investigators, as opposed to the police, have remained a bone of contention : In 2002 posts for senior investigators were advertised at R190 000, 00 plus benefits – a far higher salary than that of police superintendents with many years of experience, in charge of units with extremely heavy work loads in terms of dockets carried.

 

Despite the ‘new’ image the Scorpions project, most of the unit’s 500 members who had been recruited country-wide by October 2000 were reportedly drawn from the ranks of the police. For an ‘elite’, well-resourced unit, there has been a disappointing lack of transparency around the appointment of members, and allegations of nepotism and favouritism surfaced soon after its formation. During January 2000, Pietermaritzburg-based members admitted that relatives had been employed, in some cases without posts even being advertised. Three months later the unit was being accused, by Department of Justice officials, of ‘lawlessness’ in, among other things, appointing people in jobs that had not been approved and provided for in the department’s budget (it was also accused of ignoring procedures for procurement, overstepping the bounds of its authority, and failing to promote affirmative action). Natal Monitor has attempted, unsuccessfully, to obtain clarity in regard to appointments to the unit. In responding to a series of relevant questions posed in a letter dated 22 September 2000, addressed to National Director of Public Prosecutions Ngcuka, the curt reply of his then deputy, Advocate Sonn’s  was ‘We would appreciate any information which would assist us in creating a trusted and clean organisation’. A follow up letter pointing out that questions had not been answered, and elaborating on the issues needing to be addressed, received no response whatsoever.  It was hardly surprising, then, to learn, in June 2003,  that whole human resources staff of the National Prosecuting Authority had been suspended pending an investigation into staff appointments. Why this investigation should only cover appointments during the preceding two year period, i.e. since 2001, given that allegations of nepotism had surfaced by the beginning of 2000, is not clear.

 

In terms of the legislation (Section 19B) special investigators have to be screened by the National Intelligence Agency. Evidence was heard, at the Nkabinde and Mbele trial, of NIA involvement in the Richmond violence – and of NIA obstruction of police investigations conducted by Mbele’s team in Richmond. At that time (2000) – the Scorpions were sharing offices with the selfsame National Intelligence Agency. How credible can security ‘clearances’ from such sources be? According to a press report, two members of the Pietermaritzburg-based unit had criminal convictions, one of them for ‘tubing’ a suspect in 1996. What type of ‘clearance’ fails to prevent criminals from joining an ‘elite’ unit?

 

Nor is it evident what competencies were sought in selecting staff. The head of investigations in KZN, for example, was deemed a suitable appointee (and it is not clear whether his post was ever advertised) despite his having been the subject of stinging criticism for his ‘cutting and pasting’ method of statement- taking by the Hon Judge Hugo in the Magnus Malan et al case. Even more puzzling is the fact that Advocate Macadam continues to occupy a pivotal position, despite the opprobrium arising from what appears to have been a malicious prosecution of Nkabinde and Mbele, as well as his disastrous intervention in the Richmond investigations. Calls for an enquiry into his behaviour were ignored by his superiors. It thus seems extraordinary that he now reportedly heads the Scorpions team dealing with TRC ‘unfinished business’ – especially given his questionable judgment in appointing former apartheid state security police members (names known) to manage the Witness Protection programmes run by the Truth and Reconciliation Commission, and the Department of Justice.

 

What is particularly disconcerting is that the elites of the most repressive arm of the apartheid state – its security police members – appear well represented in the ranks of the Scorpions. The crucial role played by this elite police unit in fomenting violence, including in collaboration with Vlakplaas operatives, cannot be overemphasised. To make matters worse, few approached the Truth and Reconciliation Commission. Reports from extremely credible sources alleged, in 1994, that certain security police members were meeting, secretly, and planning destabilisation strategies against a non-racial government they did not support. It is bad enough that so many of these apartheid-era elites are now in crucial positions in the SAPS – but it is totally unacceptable that they should have been recruited into the Scorpions.

 

  • How many apartheid security      police are there in the Scorpions, who are they, and which positions do      they occupy?  Why are they employed      in a unit which projects a ‘new South Africa’ image?

 

The disregard for the rule of law which characterised apartheid security force operations has been a feature of some of the more controversial operations carried out by the Scorpions :

 

  • In October 1999 members of the unit, together with members of      Public Order Policing, raided the home of former Robben Islander Malusi  Qunene, looking for his brother Bongani. Armed with automatic weapons, and without a search warrant, they reportedly kicked open the door of the house of Qunene’s frail 77 year old grandmother. Scorpions spokesperson  Sipho Ngwema reportedly confirmed that the raid had taken place, and apologised to the family, saying that someone had got the address wrong
  • In October 2000 the Scorpions raided the premises of several      news organisations, including Reuters and Associated Press, in search of      video material on, among other things, the August 1996 killing of Pagad  member Rashid Staggie. A newspaper editorial described the raid – which,  ironically, took place on Media Freedom Day – as the ‘Worst attack on press freedom since 1994’
  • In January 2000 Advocate Macadam allegedly called up a large,      heavily armed police SWOT team to enter the Pietermaritzburg home of  magistrate and former Scorpions member Ashwin Singh, without a warrant, to  seize a tape recording of a discussion concerning the charges which were  brought against Nkabinde and Mbele. The recorded conversation apparently showed MacAdam’s disrespect for his superiors, which is being communicated  to their juniors, and the  construction of charges against senior police officers which MacAdam  appears to acknowledge, were lacking in any substance. During this raid, then, evidence which, if proven genuine, could have been used against the Scorpions was seized by them.

 

THE SCORPIONS AND POLITICAL VIOLENCE  IN KWAZULU-NATAL

One of the enduring myths about the Scorpions is that the unit brought peace to violence-wracked KwaZulu-Natal.  That is not true.  In retrospect, the unit’s intervention in KZN, at that particular point in time (late 1998) is extremely puzzling.  Apart from earlier sporadic police successes (e.g. the successful prosecutions of IFP official Samuel Jamile, the Trust Feed killers, and the Esikhawini hit squads) the period 1995 – 1998 saw the beginning of the first real progress towards dealing with the forces behind political violence, in areas such as Mandini, Mtubatuba and Richmond.  Had there not been unwarranted interference, the situation with regard to police investigations in KZN could only have improved with the replacement of Commissioner Fivas with a democratic government appointee, Commissioner Selebi,in 1999.

 

At the time of Scorpion intervention, divisions within the police, between those working to transform the service and ‘Old guard’ reactionaries was painfully obvious. While it was presumably not their intention, the actions of the Scorpions served to neutralise progressive forces and strengthen the hand of the Old Guard.

 

Scorpion interventions in the violence were on two fronts : Firstly, direct engagement with a functionary of the apartheidState, and secondly with manifestations of violence rooted in apartheid state-sponsored violence. It could be argued that, had this intervention been properly handled, those responsible for the violence would have been exposed and neutralised. That opportunity was lost, and, at best, on a few foot soldiers were identified and convicted. The forces behind the violence remain at large, free to continue their nefarious work if they so wish.

 

The roots of the violence : the apartheid state and its functionaries

The work of the Goldstone and Truth and Reconciliation Commissions, as well as court cases (Trust feed, KwaZulu Police hitsquads, and the Magnus Malan et al trials), has shown how the apartheid state and its security apparatus (including the bantustan police force) orchestrated and sustained what was misleadingly termed ‘black on black’ violence in KZN, in which thousands of people died.

 

As indicated, the security police and those they handled played a pivotal role in this violence, including through their placement in Bantustan policing structures, and infiltration into political organisations (including liberation movements).  One such security policeman, and erstwhile IFP official, was Phillip Powell, whose name is associated, among other things, with the training of IFP self-protection members at the northern KZN Mlaba camp in 1994.  According to a secret memorandum handed to the TRC, allegedly presented to the KwaZulu cabinet, this training was intended to develop, rapidly and at minimal expense, the military capacity of the Bantustan government. Trainees skilled in counter-insurgency, and of unquestioned loyalty to the KwaZulu government, were to be appointed as ‘assistant constables’. Five operational bases from which these trainees would run their ‘specialised mission’ were mooted – as was the possibility of their using ‘ISU [police Internal Stability Unit] bases and facilities’. It was envisaged that the unit ‘could form the core of a future KwaZulu Defence Force’.

 

The memorandum proposed that, in addition to siphoning weapons and resources from the KwaZulu police and KwaZulu government, a further large quantity of weapons be acquired. By then at least 70 tons of such weapons, in six truck loads, had already found their way to KZN from Vlakplaas, in October 1993. Among these weapons were hand grenades, RPG-7 rockets, mortars, anti-personnel mines and RPG rocket launchers – ‘enough to start a civil war’ as one of the men tasked with overseeing the transport of the weapons put it.  A Goldstone Commission Enquiry revealed that Powell had also tried to obtain a thousand semi-automatic LM4 rifles from Escom, but the consignment had been stopped.

 

Shortly before South Africa’s second democratic elections in 1999 – in a context of widespread violence and allegations of continued paramilitary training – a team of investigators under the office of the National Director of Public Prosecutions (NDPP) unearthed a large cache of weapons at a bunker at Nquthu, northern KZN. Reports claimed that Phillip Powell had provided information about the weapons, although Powell himself is quoted as saying the information was supplied by a ‘third party’.

 

A controlled explosion was used to destroy the cache, which accounted for, at most, only two of the Vlakplaas truckloads, with a figure of 64 tons of weapons said to be still outstanding. According to a list provided by a daily newspaper the cache included 8 RPG7s and 39 anti-tank mines; there were reportedly 182 RPG-7 rockets and 700 anti-tank mines in the Vlakplaas consignment alone.

 

There were claims that Phillip Powell had received amnesty for this disclosure, but this claim was refuted by the office of the DPP, and there was talk of his being tried for treason. While warning warlords that their time was up, Ngcuka is also quoted as saying (in May 1999) that his office would not arrest Powell ‘as a scapegoat’, but wanted to find other conspirators behind the acquisition of the weapons’. Four years later, it seems, those conspirators have still not been found. By August 2001 the Scorpions had changed their mind about arresting Powell – who had by then left the country – and a warrant had been issued.

 

Advocate Macadam had reportedly been assigned to investigate the vast quantities of weapons of war – which are presumably, in 2003, still in KwaZulu-Natal. Why have they not been found?

 

The Scorpions foray into violence investigations : 1998-2000

Richmond

Following the expulsion from the ANC of Sifiso Nkabinde in April 1997, amidst allegations that he was a registered security police informer, long simmering tensions erupted into violence in Richmond leaving at least 45 people dead in the space of six months. There was a brief lull following the arrest of Nkabinde on charges of murder but, following his acquittal in May 1998, violence levels again soared leaving another fifty people dead in the space of two months. Police members from different parts of the province were recruited to work in different teams, headed by a credible and experienced detective, Captain Sipho Mbele, who reported to Director Nkabinde. Within weeks suspects, including alleged key hit man Mbongoleni Mtolo, had been arrested in connection with eleven cases, and a period of relative calm returned to the area. Despite – or perhaps because of – these successes, concerted (and unsuccessful) efforts were being made by certain members of police management to wrest control of the investigations from Mbele’s members. Towards the end of 1998 Advocate Chris Macadam was appointed, by the National Director of Public Prosecutions, to oversee investigations into political killings in KwaZulu-Natal. It immediately became evident that, instead of confining himself to his prosecutorial role, Macadam was interfering unduly in policing work, which was to result, by early 1999, in the removal of Captain Mbele and his members. Against a background of well-founded allegations of collusion between Sifiso Nkabinde and members of the SAPS, and the involvement of some police members in cover-ups, Mbele and Co were replaced by other police members, some of whom of extremely dubious repute. One of the first actions taken by Macadam was to traumatise credible witnesses by subjecting them to the unheard of procedure (for witnesses)of lie-detector tests (which cannot prove whether a person is telling the truth or lying) and releasing Mbongoleni Mtolo on bail, Another accused hit man, Themba Mchunu, was also granted bail, despite his having been on the run from police for weeks before his being apprehended. In January 1999 Sifiso Nkabinde was assassinated, eleven people died after a massacre at the Ndabazitha home, and Mtolo was shot dead at the massacre scene. Mchunu subsequently died.  Towards the end of 2000, some time after the main named conspirators in the Tavern Massacre case had died, the Scorpions secured the convictions of three men who, the court found, had made confessions to state witnesses, two of whom were undercover agents (see Natal Monitor ‘Consider your Verdict’).

 

What has been totally obscured in coverage of Richmond investigations by the Scorpions is the important work done by units under the command of Captain Mbele, who had made considerable progress in at least nineteen cases (sixteen of them murder) before their summary expulsion from the area. No response was ever received to two letters (24 November 1999 and 15 November 2000) to the National Director of Public Prosecutions requesting a progress report on these cases.

 

After his acquittal and exoneration, Director Nkabinde was promoted out of the province, to head policing in Mpumalanga province. His departure was a devastating blow to the transformation of the detective service, since he had been the only member of management promoting the cause of competent black police members. As colleague Mbele put it, when approached by a City Press journalist ‘People had confidence in him; his office was always full of people’. The position of head of detectives, denied him by the crucially-timed prosecution by the Scorpions, was taken by a man with a track record of obstructing, and trying to halt, the work of competent black members and their units.

 

Paulpietersburg

Scorpions’ interference in the work being done by credible detectives was not confined to Richmond. A team headed by Supt Mandla Vilakazi had secured a number of high court convictions for political violence in the Mandini and Mtubatuba areas in the 1995-1998 period. They had also arrested a number of alleged murderers for a pre-election massacre at Paulpietersburg in March 1994 – ‘The State versus B Z Khalishwayo and 13 others, Paulpietersburg CAS 110/03/94). Over the years members of the unit had worked closely and successfully with certain members of staff in the office of the DPP in Pietermaritzburg. For some unknown reason the case was transferred to Advocate Macadam, soon after the launch of the Scorpions. Despite progress made in the case, and without any reason being given, charges were ‘provisionally’ withdrawn against the accused. The investigating officer alleged that witnesses had been intimidated. The main accused, B Z Khalishwayo, was subsequently murdered.

 

KwaMbonambi

Political violence in the KwaMbonambi area, between Richards Bay and Mtubatuba, had long been accompanied by allegations of police involvement, especially on the part of certain members of Mtubatuba-based Public Order Policing (formerly Internal Stability Unit; co-incidentally, it was ISU bases which were named in Phillip Powell’s secret memorandum), who were also allegedly linked to violence in other North Coast areas.  By 1999, local Nhlabane politician and strongman Phineas Mthethwa was under investigation by members of Vilakazi’s unit, and was facing charges of murder.

 

In February 1999 ANC MPP Walter Felgate, formerly a highly-placed IFP official, was injured in an assault by IFP supporters in the Nhlabane area. One of the witnesses was Vasi Ntuli. Ntuli was subsequently abducted and assaulted by people believed to be security force members and, shortly thereafter, was abducted in broad daylight by men in a car known to be associated with Mthethwa (who had been released on bail). Around two weeks later his decomposing body was found not far from Mthethwa’s home.  Not long before the body was found members of Vilakazi’s Violence Investigation Unit, who were searching for it, came under heavy fire, in the vicinity of the same house, and were extremely lucky to escape with minor injury. Their vehicles were badly damaged. Certain members of Public Order Policing, who were believed to have a close relationship with Mthethwa, removed evidence and did not hand it in at the local station. As these crimes fell within its ambit of operation, Vialazi’s Violence Investigation Unit took the dockets for investigation – but they were subsequently summarily removed from their possession. It transpired that the removal had been arranged by ‘Old Guard’ police members and handed to the Scorpions.  Attempts to follow up these matters have been unsuccessful.

 

 

ORGANISED CRIME AND CORRUPTION BUSTING

Since the Scorpions’ chief claim to fame is their supposed expertise in the fields of organised crime and corruption-busting, the public needs to know exactly what they have they achieved – in terms of court convictions.

 

For an elite, well-resourced unit there have been some embarrassing blunders. Take, for example, the much-vaunted arrest of ‘Mafia boss’ Palazzolo in November 1999. which ended in his acquittal, in March 2003, on fraud and forgery charges, with Cape regional magistrate Vermeulen commenting that the decision to prosecute ‘boggles the mind’.

 

Another controversial case involved their highly-publicised investigations into the affairs of the head of the Wheels for Africa business group, Billy Rautenbach, who was publicly linked, by the NDPP, to the murder of Daewoo South Africa president Yong Koo Kwon. Counsel for the NDPP reportedly conceded in court in December 1999 that ‘press statements made by the NDPP were contrary to the law and defamatory’. In February 2003 Rautenbach – whose assets had been seized by the Asset Forfeiture Unit, and subsequently returned to him by the court – launched defamation lawsuits totally millions of rand against Ngcuka, Justice Minister Maduna and deputy national director of public prosecutions Willie Hofmeyr for ‘allegedly publishing false allegations that injured his reputation and denigrated his integrity.’  Presumably the taxpayer will fund the State’s defence of these actions.

 

While they are credited with the arrest of the head of the SAPS Organised crime unit in KZN, Piet Meyer, who was subsequently convicted (in 2002) on charges of corruption, theft and making a false statement, the senior investigating officer involved in the initial investigations is a member of the SAPS. Furthermore, according to organised crime expert, Advocate Jennifer Wild – who personally handed a file of 1995/6 court proceedings to investigators at the commencement of their investigations – the file contained more than enough material to press far more serious charges against Meyer than those for which he was indicted.

 

Although the media is replete with examples of Scorpions ‘stings’, ‘swoops’ and ‘raids’ there is a relative paucity of  follow up material on the different cases. How many of these operations are successful, in that they result in convictions of criminals and the uncovering and neutralising of the forces behind organised crime activities.

By way of example :

 

The drugs scourge

In May 2001, according to a press report, the Scorpions ‘declared war’, on Durban drug lords, singling out Nigerians for special attention. By using Nigerians as scapegoats, Scorpions (like their counterparts in the police), not only fuel xenophobia, but divert attention from evidence placed before the TRC (Project Coast), and earlier research, about the role of the apartheid state in the manufacture and dissemination of highly addictive drugs.  Just over two years after this declaration of war, a local newspaper report described the drug trade in Durban’s Point area as worth one billion rand per year, and the increase in drug peddling as ‘totally overwhelming’, which is hardly indicative of victory in the ‘war’ against dealers.

 

  • What contribution have Scorpion activities made to stopping this trade by identifying and convicting those who are behind it, including by
  • Following up on evidence about Project Coast and the huge quantities of addictive drugs linked to apartheid’s chemical warfare programme
  • If Scorpions investigators are drawn from the ranks of the police, including security police/SANAB (these two arms of the SAP were interchangeable) are they likely to be any more successful than the police in exposing drug dealers?

 

South Africa’s missing billions

Research shows that for many years before the change of government in 1994 the wealth of the country, including monetary and intellectual property, was  haemorrhaging into overseas havens, indicative of organised criminal activities on a breathtaking scale

 

  • what progress have the Scorpions made in restoring the country’s wealth to its rightful owners, for the benefit of the people of South Africa

 

Corruption-busters par excellence?

Although the media’s long-standing preoccupation with the Arms Deal probe is understandable, it has unfortunately deflected attention from important questions about other corruption probes which appear to be in the hands of the Scorpions; the word appear is used because there is often confusion in the minds of the public as to whether investigators are police or Scorpions – or even from another Directorate reporting to the Director of Public Prosecutions. By way of example, the following two cases involve allegations of gross corruption with significant implications for stability in KwaZulu-Natal :

 

The strange case of “doctor” Isseri

In 1998 Sateesh Isseri (also known as Sateesh Singh) made startling and serious allegations in the press implicating certain senior provincial government officials in a conspiracy to divert millions of rand of provincial funds to the establishment of the ‘Kingdom of kwaZulu’. Isseri, who was in the business of providing medical supplies and ambulance services, claimed he had had meetings with politicians who had promised him that, in return for his assistance, he would be rewarded with state tenders relating to medical and ambulance services. At that stage Isseri, who was in the witness protection programme, was suing the province for two cheques allegedly issued to him and not honoured. However, by the beginning of 1999 Isseri was being sought for defrauding the provincial government, the witness protection programme and medical aid societies. By April 1999 the Directorate of serious economic offences, falling under NDPP Ngcuka was reportedly looking into the money-laundering of provincial funds, and showing an interest in Isseri’s allegations.

Isseri’s appearance in court in April 1999 was accompanied by allegations that the office of the national director of public prosecutions and the directorate for serious economic offences had attempted to exert influence on the prosecutors not to oppose bail for Isseri (the issuing of unauthorised instructions to prosecutors was one of the complaints levied against the Scorpions by Justice department officials in 2000).

 

This matter went quiet and, by the middle of 1999, a man believed to be Isseri was frequenting the Creighton area, posing as a journalist, and asking questions about weapons in the area. His activities endangered the lives of some of the local residents. He was believed by locals to be operating in collusion with people who were either police or Scorpions. They were presumably Scorpions members, since Ngcuka’s serious economic offences directorate had confirmed its investigation of the case.

 

According to an affidavit submitted in a murder trial heard in the Ixopo regional court in September 2001, it was known that a prominent politician had delivered weapons to the Creighton area in which the Isseri-related activities were taking place.  If it was indeed the Scorpions who were investigating, nothing was done about these weapons. In fact, one of them was used to kill a young woman on 25 December 2000.

 

  • Did the Scorpions  take over the Isseri investigation – and, if so, what was the outcome of  their investigation into what were extremely serious allegations involving  money-laundering for purposes of political destabilisation?
  • Why an  uncharacteristic silence about this matter?

 

Ndondakusuka municipality

In 2001, following his dismissal, on grounds of misconduct, from the position of Deputy director-general in the Department of Arts, Culture, Science and Technology, Professor Musa Xulu was employed as municipal manager for Ndondakusuka municipality, Mandini. Professor Xulu had long been dogged by controversy, having been accused in 1996 by Jeffrey Eric Robinson, a lecturer in the Music Department at the University of Zululand, of corruption in, among other things, adjusting students’ marks. Robinson’s allegations were upheld in a Supreme Court case in which Judgment was given in his favour.

 

Almost immediately after his appointment as municipal manager, extremely serious allegations, including of mismanagement of funds, nepotism and the irregular awarding of tenders, involving millions of rand, surfaced. In April  2003, Xulu was suspended from office, and a case of corruption involving the alleged irregular awarding of tenders was opened against him at the Mandini SAPS.

 

Several months before his suspension a wad of documentation was handed to the Scorpions who confirmed, in April, that they were investigating Xulu.  According to reliable sources, this documentation contained highly incriminating information, allegedly implicating not only Xulu, but others also, in a series of front companies siphoning off huge amounts of government funding. Interestingly, a company whose name appears on letterheads linked to the alleged irregular awarding of tenders appears connected with a security company whose operatives, dressed and armed exactly like members of the SANDF, have been terrorising residents in Mbazwana, northern KZN, and posing a potential threat to the security of the State (see Natal Monitor report ‘Is the government in control?’). Both these companies are alleged to have had close links with the apartheid state.

 

  • Why the  uncharacteristic silence about these investigations?
  • How far have they  progressed?
  • Is anyone going to be arrested and charged and, if not, why not?

 

 

THE SCORPIONS : A REVIEW IS LONG OVERDUE

All that glitters is, unfortunately, not gold, and the emperors’ clothes, it appears, are not nearly as splendid as they may seem :

 

The Scorpions’ disastrous foray into political violence in KZN not only weakened policing but allowed the forces behind the violence to escape unscathed.
A huge arsenal of weapons of war has still not been located, nor have those responsible for its procurement and deployment been arrested and charged.  Despite their love of publicity, there is a singular lack of transparency insofar as investigations into allegations of high level corruption in KwaZulu-Natal is concerned. Nor has any evidence yet been presented of their having fulfilled their ‘organised crime’ mandate through exposing and neutralising drug dealers, and restoring the stolen wealth of the country to its rightful owners.

 

  • Why have the Scorpions not expended the same effort on weapons of mass destruction as they have on Arms Deal corruption?
  • Why is there a selective targeting of some people and not others?
  • Why the flaunting of provisions of the Criminal Procedure Act in favour of trial by media?

 

Natal Monitor calls for

 

  • The Scorpions to charge Deputy Zuma, if they do have a prima facie case against him, since he has already been charged, and found guilty, in the media
  • The Arms Deal investigations to run their course
  • The government to proceed, urgently, with a full, independent, review of the internal structuring, and operations of, the Scorpions  and,
  • unless cogent reasons can be found for their continued existence, to re-integrate investigators  into the South African Police service

 

 

 

Selected References

The Nkabinde and Mbele Case  : Court record and Judgment (Pietermaritzburg R/C1488/99); Natal Monitor documentation on Richmond violence and Justice Under State Transition (J.U.S.T) reports by de Haas and Wild; correspondence between de Haas and the police, the Scorpions and government; newspaper clippings

 

Old Wine in New Wineskins : The National Prosecuting Authority Act 32 of 1998 and the amendment of the Act in 2000; J.U.S.T. reports; press clippings, including ‘Scorpions jobs defended’ Daily News 12/01/00; ‘Scorpions feel the sting of angry Justice officials’ Sunday Times 23/04/00; ‘Scorpions pay scales create row’ Mercury 26/10/00; full page Scorpions job advertisement  City Press 23/06/02; ‘Scorpions swoop on their own staff’ Sunday Times 15/06/03;  ‘Scorpions sting in the foot’ Sunday Tribune 17/10/99; de Haas M 1999 The more things change…..Policing in the ‘New’ South Africa

Political violence: Goldstone and Truth and Reconciliation (TRC) reports, press reports and published articles on Jamile, Trust Feed, KZP hitsquads (Mbambo, Mkhize and Hlongwane) cases and Natal Monitor reports, secret memorandum handed to TRC; sundry press reports re: weapons cache, including ‘Conspiracy theory over arms cache’ The Mercury 12/05/99;  ‘Bring Powell back to SA’ City Press 5/8/01; ‘Warrant still out for IFP’s Powell’ Mercury 25/03/03;  Pauw J 1997 Into the Heart of Darkness ; correspondence and personal communications de Haas and police and de Haas and Scorpions re: Richmond, Paulpietersburg and kwaMbonambi cases; Amnesty International 1999 Urgent Action re: Vasi Ntuli.

Corruption and organised crime : Sundry press reports re: Palazzola, Rautenbach and Meyer including ‘Mafia boss arrested’ 13/11/99; ‘Nguka rejects incompetence claims’ Mercury 18/3/03; ‘Meyer gets ten years’ Mercury 16/12/02; ‘Ngcuka sued for R180m’ City Press 9/02/03

Sundry press reports on drugs, including ‘Scorpions declare war on city drug lords’ Daily News 15/05/01; ‘Point drug trade ‘worth R1bn a year’ Daily News 3/7/03; The matter of Azor S E and D B Azor, Supreme Court Durban and Coastal Local Division Case No 2360/96, various reports and papers on apartheid as an organised crime syndicate by Advocate Jennifer Wild, including Wild J 1993(1998) ‘Apartheid Cyndicate Inc (First Force Diversified Holdings)’; TRC hearings on Project Coast; Burger M and C Gould 2002 Secrets and Lies

Regarding the Isseri case, sundry press reports, including ‘Doctor tells all’ Sunday Tribune 9/08/98; ‘Prosecution team under pressure’ Mercury 16/4/99; interview with Isseri;  The State versus T Zulu, Ixopo regional court, September 2001

Xulu case :  Press reports, including ‘Xulu booted out of office’ City Press 13/4/03; interviews with concerned Mandini residents; J E Robinson versus University of Zululand, Professor C Dlamini, C H Nxumalo and Prof Ndakino Supreme Court Durban and Coastal Local Division 6328/96 Natal Monitor reports on Mbazwana/Mabaso reserve at www.violencemonitor.com .

 

MABASO FORCED REMOVALS : IS THE GOVERNMENT IN CONTROL?

Recent events in Mbazwana, near the Greater St Lucia Heritage site, raise serious questions about whether those mandated to ensure the security of the State, its citizens and potential tourists are in control of private militias who are terrorising rural residents.

On the border of the Mabaso and Mbila Tribal Authority areas Inkosi Nxumalo of Mabaso, together with business associates, has fenced off an area of communal land for the establishment of a game lodge. In the process dozens of residents have been displaced from their family homes and/or had their subsistence activities curtailed or stopped. Since their constitutionally enshrined human rights have been violated a High Court action has been brought on their behalf.

Towards the end of 2002, when people still living inside the fenced off game lodge area received a threatening ultimatum to vacate their homes, and stop engaging in the type of subsistence activities which keep them alive, a High Court Interdict was obtained. Inkosi Nxumalo was restrained from (a)evicting people from their homes (b)preventing their access to traditional sources of sustenance (c)restricting their freedom of movement, and (d) threatening them. When information was disclosed that he had transgressed the Interdict Inkosi Nxumalo was arrested for contempt of court in February 2003 and released on his own recognizances. He denies the charges against him, and there will be a further court appearances in June 2003.

Despite the fact that the Interdict is still in force, people continue to claim that they cannot freely engage in subsistence activities, and that they suffer other forms of harassment which can only emanate form the chief, presumably in order to procure his objective. After a helicopter was seen in the area on Saturday 15 March, it returned on Monday 17 March, bringing people who appeared to be army members to search people and homes for weapons allegedly used to kill game. Although residents are adamant that the helicopter was the same as that used by the army, both police and army deny that any security force operation took place.

On Sunday 30 March two men whose home is inside the fenced off area were engaged in one of their subsistence activities at around 07:30. Two of these men had furnished affidavits which had caused the court to order the chief’s arrest. They had also opened cases at the local police station, in respect of which no action seems to have been taken against chief. They were held up at gunpoint by men wearing army (camouflage) uniforms and bullet proof vests, armed with what appeared automatic, army-issue type guns, and hand grenades. To all intents and purposes they were soldiers – but with one small, hardly noticeable difference – on their caps a small sign bore the name of a private security company (name known). The two men were
– abducted by these men and, in the course of the day (they were allowed to return to their homes during the late afternoon) assaulted and abused
– told that they would be shot if they were found in the area again; when they protested that they lived there they were
– informed that they needed to obtain a permit from the chief (Inkosi) – who is under court Interdict and arrest – or one of his headmen (izinduna)
– photographed so that they would be identified if they were found in the area again.

As ordered, after their release they sought a permit, thinking that would prevent their being shot on sight, as they had been warned, if they returned to their homes. The permit was refused by the official representative of same chief. These men now, understandably, fear being shot if they return home. Appropriate court action is, once again, being instituted. However, even with a court Interdict in place the law continues to be wilfully subverted.

There is credible evidence relating to the incident on Sunday, and that two weeks earlier in which homes were raided, which raises extremely serious questions about the capacity of the relevant organs of State to administer law and order –and which suggests that there are areas which are not under the State’s control. These areas appear to be under the control of a paramilitary force composed of persons impersonating (with one difference only – a small sign on their caps) the SANDF, breaking the law by wearing camouflage uniforms and carrying grenades. The area is one which is communal land, occupied by families for generations, and it is also regrettably close to the St Lucia World Heritage Site to which international tourists are invited. .Both senior police and army officers claim to know nothing about the operations of this militia. Initial investigations suggest that this paramilitary force may have links with apartheid military operatives and their Caprivi trainee surrogates.

In the public interest, answers are urgently needed to the following questions :
– who is deploying this private army in the area? Who is paying them?
– Why do the police and the army know nothing about their activities?
– Why are the local police not preventing illegal activities such as the order that people obtain permits to live in their own homes – especially given the existence of a court Interdict?
– Why are the police not protecting the local residents?
– What is the real truth behind the scramble to control this piece of land – is it because there are valuable minerals on it?

Finally, has the South African government lost control of strategic areas which are of pivotal importance to economic development and tourism?