Commissioner Baloyi

Advocate Serunye requested the section 27 referral document multiple times from Mr Brian Padayachee but was never given it, indicating that either he did not have it or it was lost or disappeared.

“It was never given to me, Commissioner Baloyi. I asked for it. I spoke with Mr Brian Padayachee on about three, four occasions. And every time when I was asking for that, he could not give it to me ... It appears either it was lost or disappeared.”

There was no prima facie case of corruption at the time of arrest, and the arrest seemed premature given the lack of sufficient evidence and ongoing investigations.

“My view at the time, Commissioner Baloyi, was that no. They should have been asked right from the beginning, but then you arrest.”

ADV Serunye does not know who prepared the chargesheet and did not find out, noting the matter was already in court.

“Honestly , I do not know who prepared this chargesheet , Commissioner Baloyi . Like I said , the matter is already in court . I do not know .”

Adv Johnson confirms that prosecutors made the decision to add General Masemola as a co-accused, and that he participated in the briefing discussion regarding whether Masemola would be charged jointly or separately.

“Yes, the prosecutors take the decision. When we were briefed, we agreed that he is charged only for the PFMA.”

Commissioner Baloyi requested documents or information pertaining to former Minister Bheki Cele’s siphoning of secret funds.

“Commissioner Baloyi had specifically requested documents or information pertaining to the former Minister Bheki Cele’s siphoning, I think, of the secret fund”

ADV Johnson in the Ad Hoc Committee said he knew nothing about the PKTT, its activities, reporting lines, and actual work, stating it was not within his knowledge and purview.

“I know nothing about the PKTT. Keep that in mind when you explain, when you give your answer”

The person who approves summons or investigation steps has ultimate responsibility and must be satisfied about the legitimacy of the inquiry; it is not proper for the preparer to be the one answering questions about the investigation legitimacy.

“the best person to answer is the person that authorises the summons ... you are the final decision maker ... you must have satisfied yourself ...”

Commissioner Baloyi correctly stated that irregular appointments in Crime Intelligence were investigated by the Public Service Commission, not IDAC, and related complaints had been previously addressed by the PSC with recommendations to the National Commissioner and Minister.

“... By the time Mr Adams brings these things to IDAC, the Public Service Commission has already investigated them and made recommendations... It is not IDAC's mandate to be investigating these issues because there are other bodies that are responsible for these investigations.”

There is a danger in drawing inappropriate conclusions from factual inaccuracies elevated beyond their factual context, which might incorrectly cast doubt on clinical diagnoses.

“The danger in the exercise that we were just going through ... you must be very careful in what conclusion you draw ... those mere facts are elevated to considerations that impugn, or not even impugn, that open to doubt the clinical diagnosis.”

The clinical diagnosis itself is not impugned by the factual issues but remains accepted.

“Commissioner Baloyi rightfully says that they are not impugning his clinical diagnosis, they are just relying on these factual issues to say there is a problem here ...”

The discussion concerns the deleterious effect of compelled examination by a third-party medical practitioner on the treating doctor's role, emphasizing that less intrusive means that respect the treating doctor's role are acceptable.

“what he is addressing in those circumstances is what the deleterious effect of a compelled imposition of a third party medical practitioner would be for what he is doing, but not to say that that is a total outruling of less intrusive means, provided that whatever the less intrusive means are, plays a suitably respectful role of him as the treating doctor”

There was a debate between Commissioner Baloyi and Mr Carrim about how particular decisions are made, whether there are proper books of account and the regularity of what is going on inside the business from a corporate perspective.

“there was a debate between Commissioner Baloyi and Mr Carrim about how particular decisions are made or not made and are there proper books of account and what is the regularity of what is going on inside this business from a corporate perspective”

Claims that section 27 complaints are inadequate and that the investigation was based on such complaints, which implied criminal allegations against police and disappearances of dockets, were accepted at face value without questioning by the investigating party.

“We based it, we based our actions on what was on the section 27, and on the 27, there are allegations being made against the police in terms of criminal allegations, as well as allegations that the dockets would disappear, as they did in Cape Town, and it is on that basis that I make that call, Commissioner Baloyi. So you unquestioningly just accepted his say so. He says to you in the affidavit, my dockets have disappeared, they have been intercepted, and you go into investigation mode. You do not question why would he say that. Let me verify that indeed nothing is being done about them. You say, it is on the basis of what he says. So whatever he says, you just acted on that, because that is what it is.”

Designations are done in practice to identify persons to conduct the investigation to ensure accountability and responsibility, preventing disorganised fishing expeditions.

“out of practice , we do designate persons to the investigation , preparatory or otherwise , or else it will go back to Commissioner Baloyi 's point of you have people running around on fishing expeditions and doing as they please . And how do we account for what was done , who did it ?”

Commissioner Baloyi states that the prosecution submission would not link names to specific factual allegations, but that such linking would occur in submissions made to the advocate by Chief Perumal, and it would justify including names in the list for the application.

“The linking of these names to any specific factual allegation would not be in the submission from the prosecutor to you, it would be in whatever submission was made to you by Chief Perumal... So the one that gives, by the time you give the list to the prosecutor, Ms Ramsami, in this case, you already have been told these people are implicated.”

Advocate Johnson recalls that at the time of the ad hoc committee hearing, he thought he received the section 27 referral in mid-December but later realized this was a mistake as he had acted before 6 December 2024.

“At the time, Commissioner Baloyi, that was my recollection...”

Advocate Johnson states his earlier recollection that the referral was received in mid-December was due to his memory at the time and that he prepared to attend the ad hoc committee properly.

“At the time, Commissioner Baloyi, that was my recollection... incoming to this Commission, I had to aufait myself properly with all of the facts... I did not go through all of this detail with my team when I went to ad hoc.”

Advocate Johnson accepts that the names from 4 to 12 are not from the section 27 affidavit and someone must have given them to Ms Ramsami.

“You accept that it is not from the section 27 affidavit that she got the names. You accept that someone must have, if they come from her, someone must have given her these names.”

There is no committee that makes the decision whether to take on a matter; the suggestion of a committee is part of a draft operations manual but it is not implemented yet.

“He is incorrect about a committee. These are Chair, when you put to me about the juristic nature of things, after IDAC became permanent ... we have come up with a draft operations manual ... in that draft operations manual, which is soon to be finalized, that you would find the suggestion of a committee. But there is not, Commissioner Baloyi, a committee”

Legal principles guide investigators to prefer subpoenas over arrest warrants to avoid invasive executions when securing attendance in court, especially where families are involved.

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In investigation process, it is preferred to call a person to hand themselves over rather than execute a warrant invasively at their home or business, considering family and privacy.

“...you call them and ask them to hand themselves over, and then you do that processing. Those are the ones that are preferred , so as not to be invasive in terms of their space. Sometimes investigators think a bit differently, Commissioner Baloyi, but I am able to – and there is a lot of other considerations, especially where people have families.”

Adv Baloyi asserts that the four people referred to are likely telling the truth about what happened, and accuses the witness of making up a story with Colonel Jacob about who was present during a search.

“the probability here is that the four are telling the truth of what happened , you are making up a story and you may be making up that story because that is what you discussed with Colonel Jacob”

Advocate Baloyi accuses Colonel Jacobi of being untruthful in his evidence that he appointed Warrant Officer Mpangase as investigating officer when Jacobi left Isipingo Police Station going on leave.

“So he was untruthful, therefore, in his evidence before us that when he left Isipingo Police Station to go back on his leave, he appointed you and you remained the investigating officer until he came back from leave. That evidence, from what you are saying, that evidence is untruthful.”

Commissioner Baloyi points out from an affidavit that Warrant Officer Mpangase also took samples on the 23rd, consistent with his diary.

“The deponent in this affidavit at 580 says the same thing. He says you took the samples on the 23rd”

The investigation files include authorizations (section 27 affidavits) allowing inquiries into the vetting and security clearances of the individuals implicated.

“...in the very same files that Commissioner Baloyi references, we will find an authorization to inquire into their own personal security clearances.”

The charge sheet inaccurately suggests Ms Mokwele had involvement in Ncube's alleged wrongdoing, which the affidavit does not support.

“Did you not see that there were inaccuracies in the charge sheet to the extent that the charge sheet suggests that Ms Mokwele had anything to do with what is set out in 8.9, 8.10 and 8.11 of your affidavit?... Did you not ask the same question that Commissioner Baloyi asked, why is she included in the charge if she had nothing to do with that?”

Adv Sello SC accepts the offer to file a statement in two weeks if it is wholly unconditional by a specified date.

“If it is wholly unconditional by a specified date, then I am happy, because my concern was that if they do not get the required information from IDAC, or IDAC just outright refuses, then they would be entitled in law to approach a court to compel IDAC to provide such information if they have a basis in law to do so, and if that case is unfavorable to them, there are appeal proceedings. So the question would be, do we await that information and the challenge to, right to that information to run its course until the Constitutional Court before we get a statement? But I will accept what Commissioner Baloyi says, she says the filing in two weeks is unconditional. If that is the case, then we just need to set a date, and if the statement is not filed, we shall be back before you, Chair, and I suggest that the consequences will follow.”

There is a statutory requirement for financial disclosures that needs to be addressed further with a witness.

“It is a statutory requirement ... it is an important topic of financial disclosures and it needs to be addressed”

There were numerous errors or inadvertent mistakes from the beginning to the end of the handling of the exhibits that might have set the scene for theft, as described by Commissioner Baloyi.

“We have what I would refer to as a comedy of errors/inadvertence, or whatever one may call it, from the beginning all the way to the end. And that one wants to enquire into whether these were not already setting up a scene for the theft.”

The Commission must decide if evidence gathered falls within its terms of reference before compelling witness responses if no legal basis to refuse exists.

“It is for the Commission ultimately to determine whether the evidence that we have gathered falls within the terms of reference or not... We can engage where there is Counsel or the witnesses themselves where the witness is not represented... Does this fall within the terms of reference or does it not?”

Commissioner Baloyi made a choice to weigh risks between offending Advocate Sello or losing his job, indicating uncomfortable decisions in the inquiry process.

“Commissioner Baloyi was rightly saying to the witness, you then have to understand if you are uncomfortable, you are uncomfortable, but the Commission will take that into account, and I cannot quibble with that. He has to weigh which risks to do, whether to offend, whether to annoy Advocate Sello or to lose his job.”

Mr Mpofu stated that the Commission is not gagging or stopping questions, but is contextualizing reasons why General Senona is uncomfortable answering certain questions.

“This thing is going out of control. This is simple intervention. I do not know about gagging or stopping questions, whatever. Where that happened is not in my imagination. There is no question that we are gagging. All I said to provoke all of this past hour is I want to put into perspective the reasons why he is uncomfortable with answering certain questions, which I had understood, and I accepted Commissioner Baloyi's summation of that...”

General Senona and Commissioner Baloyi differ in their understandings about the booking in and out of certain items at Port Shepstone SAP 13; however, the register shows the items were correctly booked in and out.

“General Senona had said ... they were booked into Port Shepstone SAP 13 and booked out, and Commissioner Baloyi had a different understanding. ... it is all the bags taken for investigation and signed by Warrant Officer Mpangase ... your understanding was correct that they were also booked in and booked out in the Port Shepstone SAP 13 register.”

ADV SELLO SC states that the investigation diary is unreliable and manufactured post facto.

“This makes the point that this investigation diary is absolutely unreliable. I agree with Commissioner Baloyi. It is manufactured fact in all this diary post facto.”

Colonel Jacob admits he did not respond to the question by Commissioner Baloyi about why he did not call Nyuswa himself.

“Yes , Chair. I should have. It was an error on my part. I should have.”

Lt-Col Duma and Commissioner Baloyi agreed that the container was still under ORS control as per their SOP, although Lt-Col Duma was not initially aware of this control.

“with Commissioner Baloyi we did come to a conclusion that it was under it was still under ORS control as per their SOP which I was in a position of and I did not know about it”

The enquiry number for the paint bust was confused with the enquiry number for the frozen chicken bust, leading to errors in recorded weights of seized goods.

“they confused the paint bust with the enquiry number for the frozen chicken... Commissioner Baloyi is correct, it is not 228 kg on 551. It should be 200. And yours is the 228 for the frozen chicken”

ADV Baloyi accuses Warrant Officer Phakula of defying instructions from General Khantel to stop interfering and unlawfully removing seals to photograph them.

“General Khantel tells you that stop whatever you are doing. You defy it”

ADV Baloyi disputes Warrant Officer Phakula's explanation for impounding the vehicle, suggesting it was unnecessary because all relevant information about the vehicle was available for court.

“why would it not make sense to go to court?”

ADV Baloyi asserts that at the Port Shepstone drug bust, the container carrying drugs was not confiscated, implying inconsistency in evidence handling.

“We know in Port Shepstone they did not confiscate the container”

ADV Baloyi accuses Warrant Officer Phakula of fabricating an explanation about the necessity to impound the vehicle for transporting drugs, calling the explanation unjustifiable.

“you are making up an explanation for a decision that is not justifiable”

Advocate Baloyi SC stated that Magane's Commander said Magane's duties are office-bound and that he was not aware of the operation.

“As a Commander, I was not aware of the operation, since the member's duties are office-bound, doing crime information, management, coordination for the station.”

Advocate Baloyi expresses concern that police officers lack the ability to raise concerns about the security of drugs stored in Lt Col Prinsloo's office and suggests empowering officers to escalate such matters to prevent incidents like the killing of Brigadier Nyuswa.

“You do not have the ability to raise matters of concern... I would have been much more interested to get security and other things in place... to empower police officers or enable police officers to take up these matters... matters should not have to die at Brigadier Nyuswa.”

General Flynn confirmed Warrant Officer Mpangase was the investigating officer or 'owner' of the enquiry, with command and control responsibilities delegated to team leaders and higher-ranking officials.

“Indeed, the owner of the enquiry ... he is the investigating officer... but in terms of command and control, the responsibilities of the team leader... the Unit Commander, the Provincial Commander, as well as the Provincial Head...”

Advocate Baloyi asserts that the instruction to execute the request was made by Director Malatji's department, specifically regarding appointments connected to Water and Sanitation Department projects such as Klapperkop and Brickfield.

“the instruction was not directed to the initiator of the adhoc services, and this is Water and Sanitation Department... But you made the appointment. Your department made that appointment... Klapperkop and Brickfield... the balance of them, you had given Phiri instruction to run with this...”

Advocate Baloyi points out that Sergeant Nkosi's WhatsApp messages do not mention he is at another job or scene, and thus questions Deputy Chief Dhlamini's inference that Nkosi was attending elsewhere.

“O k a y , b u t t h i s s c r e e n p a g e t h a t S e r g e a n t N k o s i s e n d s t o y o u , i t d o e s n o t s a y h e i s a t a n o t h e r j o b . T h e r e i s n o a c c o m p a n y i n g m e s s a g e t h a t t e l l s y o u t h a t S e r g e a n t N k o s i i s i n f a c t a t a n o t h e r s c e n e . W h e r e d o y o u d r a w t h a t f r o m , t h a t h e h a s g o n e s o m e w h e r e e l s e i n s t e a d o f g o i n g w i t h y o u t o g o a n d s e e t h e v e n u e ?”

Advocate Baloyi argues Deputy Chief Dhlamini has no interest in the tender yet pressured Bheki and Nkosi to assist, which Dhlamini denies, saying his interest is compassion and support for Sergeant Nkosi whom he has known from school.

“I think there are people you will have compassion on ... They are people you have compassion on ... I took interest in Sergeant Nkosi on the earliest while he was still at the primary school ... You have absolutely no interest in this ... I do not ... I help Sergeant Nkosi from there ...”

Advocate Baloyi contends the list Deputy Chief Dhlamini sent was an effort to assist Bheki fix shortcomings in a Tshwane tender linked to Ngaphesheya, implying potential misconduct, which Dhlamini denies.

“You have shown that you prefer Ngaphesheya to be awarded a tender, and this list I want to suggest that this was to assist Bheki fix the shortcomings in this Tshwane tender ... That is not true”

Brigadier Nkhwashu expressed discomfort with Mr Molefe approaching him about job opportunities and bail issues linked to his brother-in-law.

“you confirmed to Commissioner Baloyi that ultimately you thought this was the nub of Mr Molefe's meeting with you... you were also uncomfortable with this.”

Commissioner Baloyi pointed out that Brigadier Nkhwashu's account of meeting Mr Molefe was incomplete without knowing the identity of the person arrested and case details, indicating a missing link in the narrative.

“It has to be that when Mr Molefe met with you, he did mention who the person was, what the case was about... Otherwise this account has got holes... There is something that is missing in your account, especially of the discussion with Mr Molefe.”

Commissioner Baloyi struggles to understand Brigadier Nkhwashu's account connecting Michael Tau and Mr Molefe without explicit linking details, making the narrative incomplete.

“I am struggling with the account... How you get to connect the two...”

Commissioner Baloyi highlights missing specifics about the arrested suspect being a police officer and the relation to the Armand Swart case as gaps in Brigadier Nkhwashu's account.

“if he does not mention a connection to Molefe, who is your brother-in-law, or if he does not say the suspect is connected to Molefe, or that it has to do with the Armand Swart case...there is just missing information that makes your account incomplete.”

Commissioner Faro has never had to sign any agreements in the capacity as Chief of Police since 2023.

“Yes, you have never had to sign any agreements in that, whatever agreement, as Head of Police ? No t that I ... Not that can come to mind now, Commissioner Baloyi.”

Sergeant Nkosi denies that he was seeking information only when forwarding the recruitment applications information from MMC Morodi to General Dlamini, asserting that the explanation offered by ADV Baloyi is false.

“The answer that you have given to Mr Chaskalson, that you received this information from MMC Morodi to find out what is happening with these applications, that you forwarded all of these batches of information, the different batches, to General Dlamini because you wanted information on progress in the applications, that is a false answer. That is false.”

Sergeant Nkosi clarified that the abbreviation "JS" used in communication referred to Jenene Sibiya, and not Joe Sibanyoni, despite Adv Baloyi's correction that "JS" is not short for Jenene.

“JS means Jenene. Jenene Sibiya. Jenene Sibiya. Jenene Sibiya. Referring to Swazi . . . That is my answer . . . That is my understanding . . . Jenene, Jenene..”

Advocate Baloyi denies Sergeant Nkosi's explanation about the abbreviation "JS" and states that it is false that JS means Jenene.

“What I am saying to you, that is false. The answer you have given is false.”

The investigating officer was already at the scene according to information from Mr Khawula, but Sergeant Nkosi and team decided also to go to the arrest event.

“T h e i n v e s t i g a t i n g o f f i c e r w a s a l r e a d y i n h i s w a y t h e r e , a c c o r d i n g t o t h e i n f o r m a t i o n t h a t I r e c e i v e d f r o m M r K h a w u l a . A n d a s p a r t a n d p a r c e l o f o u r p r o j e c t i n h e a d o f f i c e , I e x p l a i n e d t o C o m m i s s i o n e r B a l o y i t h a t t h e r e w e r e o t h e r d o c k e t s t h a t t h e y w e r e w o r k i n g o n t h e r e . S o , w e d e c i d e d , n o , l e t u s a l s o a s w e l l a n d g o .”

LT-Genshibiri was pressured not to mention names related to a faction and chose not to reveal any names to avoid speculation without evidence.

“that is why I am saying it was when I was pressed ... I said I choose not to mention the names”