The forensic auditor and star state witness in the Zandile Gumede corruption prosecution claims the case and 21 other high-profile matters are being sabotaged by investigators and prosecutors working with corrupt government officials to collapse the cases.
The conspiracy claims were made by lawyers Norton Rose Fulbright on behalf of Integrity Forensic Solutions CC (IFS) director Leo Saunders last November in a 60-page letter to parliament’s police and justice portfolio committees and the standing committee on public accounts (Scopa) last November.
The company has been assisting the Directorate for Priority Crime Investigation (DPCI, the Hawks) and the National Prosecuting Authority (NPA) in the R320 million Gumede case — which goes back to court next month — and 21 other matters involving high-ranking state officials and “politically exposed” individuals.
But its appointment to investigate on behalf of the eThekwini metropolitan council and to present that evidence in court on behalf of the NPA has since been challenged by the city, and is expected to be the subject of an application by Gumede’s legal team when the trial resumes.
The IFS has not yet been called to present forensic evidence in court as part of the state’s case against Gumede and the ANC councillors, city officials and contractors charged for the loss of R320 million paid for refuse removal services that were never rendered.
The company has been awarded a number of cost orders against the city after going to court to challenge the attempt to set aside its appointment to investigate claims of corruption in Durban Solid Waste by eThekwini’s City Integrity and Investigation Unit (CIIU).
The IFS claims this action by eThekwini and subsequent attempts to revoke the mandate it received from the NPA to assist with the cases and appear in court are part of a conspiracy to effectively prevent the evidence from being led and to derail the cases.
In the letter, the IFS said they had entered into memoranda of agreement with the Hawks to provide “support and assistance” to the DPCI and the NPA in bringing the 22 cases to court and to provide evidence during the trials.
A total of 16 of these, including the Gumede matter, related to the eThekwini metropolitan council, five to uMngeni/Mhlathuze Water and the last to the office of the premier. A number of the cases were before the court, with the IFS having assisted the DPCI and the Asset Forfeiture Unit (AFU) in the asset forfeiture proceedings related to them.
The accused in these cases, including Gumede, the director general in the premier’s office Nonhlanhla Mkhize, and the acting high court judge, Ralph Mhlanga, were “politically exposed persons”, as were the eThekwini councillors and officials, members of business forums and senior officials of uMngeni/Mhlathuze Water and their service providers who had been arrested and charged.
All “have proximity to a prominent political party”, the IFS said, resulting in a “concerted and choreographed attack” against them and other witnesses in the cases using “weaponised” resources of eThekwini, uMngeni/Mhlathuze, the office of the premier, the NPA and the DPCI in external attacks.
Internally, senior NPA and DPCI officials had acted in a manner that “appears to cause the accused in these matters to evade accountability by virtue of a lack of capacity and competence, or by way of acting in alignment with the objective of causing the accused to evade accountability”.
“While our client leaves the decision on the real motive of these officials, from the NPA and the DPCI, to the determination of the appropriate authorities, it is apparent that regardless of their reasons for their failure to act accordingly, the administration of justice is placed in jeopardy because of their acts and omissions, which are set out in our client’s complaints,” the IFS said.
The attacks were “designed to impugn the probative weight of the evidence of our client and other witnesses” in the cases and to “curtail” their participation, effectively “sabotaging the state’s evidence in these cases”.
This “political interference and abuse of official authority” subverted the administration of justice “in a most organised and concerted fashion”, and could be best described as “state capture”.
Officials employed by state organs had been “repurposed” for “narrow political considerations” and the “benefit of politically connected persons accused of criminal conduct,” they said.
They said they had “serious questions” about the conduct of the NPA and the DPCI in the cases and had lodged several complaints with the leadership of both organisations, including Hawks head General Godfrey Lebeya and National Director of Public Prosecutions Shamila Batohi.
The IFS had followed the state protocols in escalating its complaints upwards through the system in an attempt to allow the matter to be dealt with internally, but had “not enjoyed the cooperation” of either the DPCI or the NPA.
They said that in the process, the NPA office in the province dealing with the cases had developed “a negative and adversarial disposition toward our client since it had lodged its complaints”.
The IFS had submitted a dossier of evidence of the attempts to sabotage the cases to the DPCI, which had been ignored or dealt with in a way that “demonstrated serious levels of incompetence or dereliction in dealing with the complaints”.
They had then, “at the point of exhaustion”, approached Police Minister Senzo Mchunu and the then justice minister, Thembi Simelane, for intervention, but had not received a response from either.
It was for this reason that they had approached the portfolio committees to which the two ministers accounted — and Scopa — for them to consider the IFS’s complaints, which were in the interests of the administration of justice.
“The gravity of our client’s complaints has a serious impact on the national interests of our country, in relation to the state’s obligation to combat state capture and corruption, which has an adverse effect on our citizens and poses a threat to their access to service delivery,” they said.
The court has been inundated with cases in which citizens had been forced to litigate to compel the holders of public office to act in accordance with the Constitution and “perform the functions and duties they were appointed to perform”.
They said the IFS had decided to appeal to the committees to intervene in the matter and avoid going to court to secure an order compelling the two ministers to conduct a “qualitative and timely” investigation into their complaints.
They asked the committees to assist by appointing an independent panel to look into the matter.
“The objectivity of the prevailing circumstances and the history of the conduct of the NPA and the DPCI warrants that your esteemed office considers the appointment of an independent panel of appropriately qualified persons, delegated by parliament, to investigate the matters complained of herein,” they said.
Police portfolio committee chairperson Ian Cameron said he was aware the letter had been leaked to the media to try to force a response from the committees.
He said the matter should be dealt with by the DPCI and the relevant ministries before the committee on police could get involved and that its intervention would be “one of the last resorts, once all other remedies have been exhausted”.
“I believe local government and the standing committee on public accounts (Scopa) should coordinate such a review — and potentially justice if the NPA found that the relevant investigation was not sufficient for proper prosecution,” Cameron said.
“Nevertheless, if needed, we will obviously do the necessary work in order to inquire and question DPCI’s role,” he said.
The KwaZulu-Natal director of public prosecutions, Elaine Anderson, said the NPA would not comment in the media but would respond to parliament. “The NPA is busy with a response to parliament. As a result thereof this office will not be responding to media queries.”
Anderson confirmed that Saunders was a witness in the criminal cases.
South African Police Service spokesperson Colonel Althenda Mathe referred the Mail & Guardian to the Hawks for comment.
Hawks spokesperson Colonel Katlego Mogale had not responded to queries by the time of publication.
The forensic auditor has told parliament there is a conspiracy to ensure he does not testify in court
