section 27

Information for cases investigated usually comes from commissions of inquiry, notably the Zondo Commission, and also from Section 27 referrals, which are briefed to investigation teams.

“the sources of information will come from the commissions of inquiries. Mostly cases that we are working from, they are coming from the Zondo Commission ... with regards to section 27 ...”

Investigators get access to commission records and statements to complement briefing information, but with Section 27 referrals there is often no other source of information beyond the briefing, making them more challenging to work on.

“you can go back to the records of Zondo Commission, then you can try to suss out or maybe to get more information ... section 27, it is a bit challenging because you rely more on the briefing, but you do not have any other source ...”

Investigators only get involved in Section 27 referrals once Section 28(13) or Section 28(1) is authorized and designation is made, after which team meetings inform the members of their roles.

“when the 27 is referred, we are only getting involved when the section 28(13) or section 28(1) is authorised. It will then mean once the designation is made, your name is put there, then there will be a meeting ... you are going to be informed that this is the team that is going to be working on this matter”

Mr Raphesu understood from the interaction that Mr Perumal is building on the Section 27 statement and referring to various topics including the PKTT and the forklift issue.

“So when you take his supplementary, you understood, you understood from that interaction that he is building, he knows he is building on the section 27. That he spoke about the various topics.”

Mr Raphesu's supplementary affidavit does not mention PKTT, despite it being the basis of an investigation under section 27.

“Mr Raphesu supplementary affidavit that speaks about the PKTT when the section 27 ... says nothing about the PKTT”

Investigations are sometimes found outside the parameters of initial legal sections (like section 27) but are justified under other sections such as 28(13).

“may not have been in the section 27... but when we do investigations under 28(13), then we end up finding stuff, and that becomes justification...”

Despite PKTT not being mentioned in the section 27 affidavit, its investigation was not precluded and could be pursued via a section 28(13) addendum.

“even though it is not in the section 27 affidavit... we should still investigate it... I would have still asked to do an addendum”

The names of individuals involved in the 2023 section 27 investigation were high-ranking and documents were kept deliberately vague until the investigation was completed to avoid leaks.

“the names in that investigation were so high-ranking... we kept our documents vague... until the investigation was completed... Information leaks”

General Masemola was identified as a person of interest much later in the investigation under section 27, indicating that there were more investigations in addition to section 27 before adjudication.

“General Masemola is identified as a person of interest much later on in the investigation”

Investigator Rapetsu received the dockets and shared them with Advocate Ramsami who appraised them with section 7 alongside section 27.

“The dockets when they were received , were received by Investigator Rapetsu . Investigator Rapetsu then shared those dockets with Advocate Ramsami , who already had the 27 and she appraised those dockets together with the section 7 .”

Section 27 allows for a preparatory investigation to determine if there are reasonable grounds to continue with a fuller investigation.

“given what we had at the time is the section 27, the four dockets, then we needed to conduct a preparatory investigation in order to determine whether or not there are reasonable grounds to continue with an investigation”

Section 28(13) preliminary investigation process must not be used as a pretext to assist make a case that improperly places a complaint within jurisdiction when it does not fall within it under section 27.

“if your explanation is correct, that is exactly what happened, then ... the section 28(13) was used as a pretext to make up a case that places Mr Adams' complaint into your jurisdiction when ... it did not fall within your jurisdiction at least not in section 27.”

The Minister's letter constituted a section 27 referral for investigation under the NPAAct, making it an official request for investigation.

“So as far as the Minister was concerned, his letter was the section 27 referral”

Section 27 of the NPA Act requires affidavits to contain specific information with sub-sections A, B, and C, and non-compliance may result in the matter being unable to proceed.

“Section 27. So you do agree section 27, sub A, sub B, and to some extent sub C ... dictates what the affidavit should contain ... whereas a section 27 affidavit is insufficient for any one of a number of reasons, we ordinarily would ask the complainant to supplement or amplify and indicate what the shortcomings are ... If the complainant is unable to amplify any portion or portions that would then fulfil the requirements of section 27, we then have to indicate that we are unable to take the matter because the matter must fulfil certain requirements.”

When an affidavit lacks necessary detail under Section 27, complainants are asked for supplementary affidavits, but if they cannot provide sufficient grounds, the matter is rejected.

“Especially where just from a glance it would seem that they are just missing something ... you ask them and when they amplify you say, okay, it's still falls short ... Meaning, if it is woefully hopeless, you just reject that ...”

If an affidavit suspects money theft but does not specify grounds or evidence, it does not fulfil Section 27 requirements and is insufficient to proceed without supplementation.

“If you are given an affidavit that says, I suspect that money is being stolen ... they do not tell you the grounds on which the suspicion is based ... they have been a non-compliance with B ... what do you do? ... You would then check if they have a source of information ... if it's just 'I suspect' and there is nothing more to it, then it does not fulfil ...”

Section 27 of applicable legal provisions requires that the affidavit specifying suspicions must explicitly detail criteria A, B, and C; these cannot be established at a later stage but must be in the initial affidavit.

“27 says these things must be specified in the 27 affidavit . Because if you read 27 , it says by means of an affidavit or a firm declaration specifying A , B , C . So A , B , C are to be specified in the affidavit . They are not to be established at a later point . So the entry point is the affidavit which specifies A , B , and C”

Advocate Johnson confirms other affidavits were compliant with section 27 before investigations were initiated.

“Yes, the other affidavits were quite different. You would also see, I think you requested from us, the affidavit of a different witness. When you read those as well, you can see the compliance with these sections.”

Section 27 of an unspecified Act requires a complaint to be made on an affidavit or affirm declaration to the Head of the Investigating Directorate to initiate investigation.

“If any person has reasonable grounds to suspect that a specified offence has been or is being committed or that an attempt has been or is being made to commit such an offence, he/she may report the matter in question to the Head of the ID, Investigating Directorate, by means of an affidavit or affirm declaration.”

Advocate Johnson admits the error was applying a subjective test instead of the correct objective test under section 27.

“That was my error. It is an error. It was an honest error. The test is not subjective. The test is objective.”

Advocate Khumalo demands proper grounds in an affidavit per section 27 for suitability or suspicion of offences related to appointments.

“The affidavit must specify 1, 2, 3... not that it must set out the suspicion, and then the grounds IDAC will figure them out for itself.”

Advocate Baloyi SC states that an affidavit that only says 'procurement matters' is insufficient as grounds under section 27.

“To say I received an envelope that has procurement matters, that is not a ground. It does not tell you anything about the contents of the envelope.”

IDAC does not negotiate with SAPS to take over a docket; rather, IDAC asserts its authority upon receiving a section 27 referral to take charge of the investigation.

“IDAC does not just go and take dockets . IDAC is tasked with an investigation into which there are allegations made ... We requested those dockets , officially requested those dockets to see and verify what the section 27 or the complainant is saying ... We requested those dockets ... And that those dockets do exist .”

Colonel Padayachee testified that the jurisdiction for IDAC to get seized of the matter is through a Section 27 referral based on a reasonable suspicion of a specified offence related to fraud and corruption in the appointment.

“Yes ... That has been your testimony. ... That is what gave us jurisdiction. That is what got us started.”

Colonel Padayachee acknowledges difficulty with the statutory requirement of Section 27 as the specified offence referenced in previous legislation no longer exists, yet maintains satisfaction that jurisdictional requirements were met.

“I am still struggling with it, Commissioner ... 7(1) has been deleted ... 7(1A) does not deal with specified offence ... I am still satisfied that it is present.”

The referral affidavit must comply with section 27 of the NPA Act, stating the grounds of suspicion and nature of the suspicion.

“Section 27 then must state the grounds on which the suspicion is based.”

Section 7 referral requires reasonable suspicion based on the affidavit, not mere assertions or suspicions without substantiation.

“So you do not have to look at what did you subsequently learn. You are simply looking at what does the affidavit say. Looking only at what it says, are we in the section 27 territory?”

Allegations in paragraph 5 of the affidavit are based on suspicion that funds were given to Minister Cele, but are not substantiated or explained in detail.

“In paragraph 5, Mr Adams says: 'I suspect that some of the funds are being given to Minister Cele.' He has made sufficient allegations to trigger your section 27 powers, or in fact, (1A) powers. He says it is a suspicion. He does not say what is the basis for the suspicion.”

Investigator states that on the face of the affidavit, the paragraphs containing suspicions do not meet the reasonable suspicion threshold of section 27 to proceed with investigations.

“... just on the face of this, that does not, are you prepared to accept that it does not seem to meet the requirement of what section 27 contemplates, which is there has to be a reasonable suspicion?”

Chairperson criticizes investigator's approach, emphasizing that unsubstantiated suspicion is not enough to meet section 27 legal requirements for investigations.

“The problem with your approach is that you seem to believe that once an allegation has been made, the section 27 requirements have been met. Just because Mr Adams says he suspects without substantiating, then for you that is sufficient.”

Colonel Padayachee agrees that a mere suspicion without substantiation does not satisfy section 27 requirements.

“COLONEL PADAYACHEE”