investigating officer

A bail statement contains reasons why the State is not opposing bail and avoids the need for the investigating officer to testify viva voce in court.

“Schedule 5 ... The accused to be released on bail has to bring an application and satisfy the court... the state, to avoid the investigating officer to testify viva voce in court, he then compiles an affidavit setting out... the reasons why we are not opposing”

Adv Serunye claims he was not part of the case initially and was brought in to help juniors; he notes the prosecution team was unprepared for the bail application with no bail statement available from the investigating officer.

“I was not part of this case ... My first involvement is going to court to try and help a junior ... I did not know how they had planned ... the prosecution were not even ready for the bail application because when I asked for a bail statement from the investigating officer , I realised they do not even have one”

Warrant Officer Mpangase explained that booking exhibits out for analysis in the register did not imply immediate removal for investigation but meant they would eventually be taken for analysis.

“When I stated that I was booking them out for analysis, that did not imply that I was directly or immediately taking them out for investigation ... That was going to be the duty of the investigating officer to take them, transport them for analysis.”

It is very important for investigating officers to get the suspect's version of events without showing them the complainant's statement beforehand as it is unethical and not allowed.

“When I do a warning statement that I inform the suspect of the complaint, not what the witness was saying, because I need the suspect's version of events, if he is going to give it to me or not. That is a different ballgame. If he is not giving it to me, then obviously I cannot take it further. But if he is willing to give it to me, I cannot tell him beforehand what the suspect said because it is unethical and it is not allowed.”

General Senona indicated there was no suspicion of wrongdoing against the investigating officer when he handed over the keys for investigation at Port Shepstone.

“there was no suspicion of any wrongdoing that I have picked up against the investigating officer at that stage”

Chief Mashaba was communicating with Mr. Nku about a car key, suggesting involvement of an investigating officer and a vehicle, and intended to ask the investigating officer about the key.

“A t 1 2 : 0 4 o n t h e 2 5 t h o f J u n e . Yo u s a y : “ He d o e s n o t s e e t h e m . ” 5 J u n e , 1 2 : 2 1 . T h e n M r N k u s a y s : “ M a y b e t h e y a r e w i t h t h e I O . ” A n d t h e n y o u s a y : “ I w i l l a s k t h e I O . ””

Mr Nku and Iby Boss (Alpha) were involved in a transaction regarding car keys with an investigating officer, and Chief Mashaba attempted to influence the investigating officer to release an exhibit (the key) at Mr Nku's behest.

“The picture that it creates is you, Mr Nku, and Boss Iby or Iby Boss, who is also referred to as Alpha, were involved in a transaction that included car keys that are with an investigating officer, possibly as an exhibit, that are with an investigating officer and you wanted that key to be released ... you are interfering and speaking to influence an investigating officer to release an exhibit ... you say I will speak to the investigating officer ... and you do so at the behest of Mr Nku.”

Chief Mashaba confirms he would not negotiate with the investigating officer to release an exhibit key if it would put the officer at risk or risk his job.

“but I will go and negotiate for something that I know I will be putting the IO at risk, or risking his job, to do something impossible for me. That I would not do.”

The speaker states that the duty to ensure submission of exhibits to the FSL within 7 working days lies with the investigating officer and the station and detective commander, roles the speaker did not hold.

“Paragraph 20.4.2.15(3)(f) of the National Instruction 8/2017 places the duty on the investigating officer who must ensure submission within 7 working days. Paragraph 0.4.3. Similarly, paragraph 8.3 of the National Instruction 8/2017 places the responsibility on the Station Commander, SAP 13 official and the Detective Commander. I held none of the designated roles.”

Lieutenant Colonel Sibiya states that if he is available to assist, he normally helps everyone in the office who requests help, but the responsibility lies with the investigating officer.

“If you are requested to assist and you are available to assist, I normally assist everyone in the office who request assistance. So I do not see anything wrong by assisting. But the person who is responsible is the investigating officer who is responsible for everything.”

The investigating officer who brought in exhibits does not decide where the exhibits go or their security.

“you as the investigating officer, who is going to appear in court... and testify about the chain of evidence... is the one that has an interest in the security of those exhibits and to say that someone that you brought in... is now the one that makes decisions about where these exhibits go, it just does not sound correct.”

Forensic Science Laboratory (FSL) is not called to recovery scenes; investigating officers do sampling and guiding without involving clan labs or FSL.

“If an Investigating Officer calls FSL to come to the scene of a recovery to guide his members or her members with taking sampling, with doing sampling, have you ever heard of anything like that occurring, and why would that happen? ... Commissioner, I can say no, and I do not know why it would happen.”

Investigating officers do not receive assistance from FSL for sampling at a recovery scene; they conduct such work themselves.

“So you would not ever ask FSL to assist you with doing sampling of exhibits? ... Commissioner, that is what I am saying.”

Investigating officers can perform presumptive testing (like cocaine identification) on the scene without assistance from FSL.

“If you, as the Investigating Officer, wanted to know whether what you are dealing with is Cocaine on the scene, what you found, you could do a presumptive test. You would not need FSL to come out to do that. ... No, I would do that. A presumptive test I can do on the scene.”

Warrant Officer Sander details undercover operations conducted under section 252A of the Criminal Procedure Act to detect drugs on vessels, involving boarding ships and using substances like baby powder as decoys.

“It is an undercover operation. It is conducted in terms of section 252A of the Criminal Procedure Act. Me as an Investigating Officer, I have done a few of them. I have boarded vessels at sea. We found the drugs. We swabbed the drugs. We put baby powder. We put something, it looks the same, along with the ...”

Colonel Jacob made an enquiry about the possibility of one of the team members analysing the case which caused concern because investigation officers are not made aware of the identity of the analyst to prevent undue influence or pressure.

“My real concern about the conversation was Colonel Jacob’s question about the possibility of one of the team members analysing the case. When a case is assigned to an analyst, the Investigating Officer is not made aware of the identity of the analyst. In fact, if there are enquiries by the Investigating Officer regarding progress of the analysis, the enquiry is made with admin, who would then notify the analyst Supervisor who would engage the analyst and report back to the Investigating Officer. This is to prevent undue influence or pressure on the analyst.”

Investigating officers apply pressure for analysis reports to be issued or enquire on progress which constitutes pressure but not improper influence.

“The first pressure is that they would ask, when will you issue the analysis report? That is the first pressure. And the other one is to say the progress of the process, where is it now? So that they would say also the court will need to remand the case, then when are you finishing it? So those are the type of pressures that are there.”

Undue influence manifests as Investigating Officers requesting details about the case before the lab analysis report is issued, which is against lab practices designed to protect analyst independence.

“Undue influence, Commissioner, will manifest by saying, what is the case that we submitted? What is it? Before the report comes out. Which is not the practice of the lab, because the practice of the lab is that the Investigating Officer will only know the results of the case that they have submitted when the 212 statement is issued to them. When the case has gone through all quality checks and everything, then a 212 statement will be given to them. So the undue influence is, you cannot give any information before the case, the 212 statement is issued out.”

Colonel Songca advised that the case, having been submitted to FSL, would be allocated to any analyst and that a request for a specific analyst by an Investigating Officer was irregular.

“Colonel Songca told me that since the case had been submitted to FSL, it will be allocated to any analyst, and that is my Commander, she considered the request from an Investigating Officer for a specific analyst to analyse the case to be irregular.”

The system captures the Investigating Officer's (IO) name when they bring a case to the lab, and this information is entered by admin personnel into the system to show the IO's name linked to the case.

“The system captures the IO, the Investigating Officer of the case... they also bring the covering minutes of the case... the admin personnel take that covering minutes and they enter it into the system... It will show the Investigating Officer's name there.”

The Investigating Officer's PERSAL number is included as a system identifier connected to the case submissions at the lab.

“It is his PERSAL number... The Investigating Officer's PERSAL number.”

The Investigating Officer does not decide the sample size or from which groups the sample is taken.

“Does the Investigating Officer play any role in the sampling decision ... ? No, he does not.”

Mr Mogotsi says all names he provided have been departmental charged and many individuals mentioned have been caught except an informant and investigating officer of the informant who he says was killed.

“Even if I was prepared to incriminate myself, all the names I have given you, even one man is in hospital, has been departmentally charged. Every person I mentioned here... the informant ... the investigating officer of the informant ... he was killed.”

Lt-Col Sebola states that statements included in docket are sometimes as instructed by the prosecutor and that he did not himself compile the docket statements.

“Sometimes at the instruction of the Prosecutor ... The Investigating Officer”

Brigadier Nyuswa did not inform Lieutenant Colonel Prinsloo about the appointment of a new investigating officer a couple of days before a break-in.

“I also found that odd that Brigadier Nyuswa did not inform me of this, and that it happened a couple days before this break-in.”

Upon finalisation of analysis, FSL prepares a section 212 statement or affidavit submitted to investigating officer forming part of case docket/enquiry evidence bundle.

“Upon finalisation of the analysis by FSL, a section 212 statement or affidavit is prepared and submitted to the investigating officer of the matter. That then forms part of the case docket or the enquiry, as part of the bundle of evidence in that case docket or enquiry.”

Brigadier Nkwashu affirms he did not know the Investigating Officer until the date of the proceedings and has never met or seen her.

“I do not know the investigating officer. I have never met her. I have never seen her.”

The process of docket transfer in the police system involves registering the docket under the name of the current investigating officer and then transferring it within the system with authorization, either verbal or written.

“when the Investigating Officer receives that particular docket, he signs for that particular docket ... after signing for that particular docket in the system, which we call it CAS control system, the Investigating Officer is now responsible for that particular docket”

Suspects related to a docket may be arrested outside the jurisdiction of the initial investigating officer, and an authorization for the docket transfer is then given to the unit with the mandate to investigate.

“when the suspects were arrested, they were arrested outside my jurisdiction ... the Investigating Officer told me they want to request that they sign for the docket because they have established ... this falls within their mandate”

Chairperson explains the presiding officer relies on information from the investigating officer or witness testimony and affidavits to decide on bail.

“what is usually placed before the investigating officer are either affidavits or testimony in the witness stand... that assists the Presiding Officer to decide whether to grant or refuse bail”

Chairperson warns that an investigating officer not opposing bail due to influence could improperly affect the decision to grant bail.

“if an investigating officer, whether on their own or as a result of influence by others, decide not to oppose bail, that may go a long way towards influencing the decision to be one that actually grants bail when it ought not to have been”

The police and specifically the investigating officer are relevant to the question of bail as they get to express a view on bail but do not make the decision; the decision is for the court or presiding officer.

“the investigating officer gets to express a view on bail. They do not make the decision, but they do get to express a view. And the way you have been dealing with this question since you started testifying is you are creating the impression that the police and investigating officers in particular are irrelevant to the question.”

Because the offense is a schedule 6 offense and very serious, the investigating officer cannot be asked not to oppose bail.

“Secondly, this is a schedule 6 offence, Commissioner. You cannot start having to, I mean, ask an investigating officer not to oppose bail because it is a schedule 6 offence. It is a very serious offence.”

Sergeant Nkosi admitted that the investigating officer was expected to follow the team to the concert but arrived late and never got a ticket to get in, so no plans were made for his entry.

“When I phoned him that the information said or suggested that Mr Khawula is at the concert, the investigating officer promised to follow us there. But on that particular time when we arrived, he was not there...so we thought we would as a team make a plan for him to get in when he is there...he did not arrive there, so we did not make any plan.”

Neither Sergeant Nkosi nor anyone in the team had planned how the investigating officer would get into the concert without a ticket, indicating a lack of preparation.

“I do not know what was going to be the plan...we were going to make a plan once he arrived there...I think we had not even applied our minds to that.”

Sergeant Nkosi confirmed the investigating officer never arrived at the concert and the team never formulated a plan for his entry without a ticket.

“He did not arrive there, so we did not make any plan.”

The investigating officer is a detective and would have arrived in civilian clothing, not uniform.

“He is a detective he does not wear a uniform.”

Mr Khawula was not present at the Kroon Park Holiday Resort concert where six policemen from Gauteng attended an operation in Kroonstad.

“the tickets for the concert where you failed to find Mr Khawula ... the concert was held at Kroon Park Holiday Resort ... So this operation took six policemen from Gauteng to Kroonstad ... With the possibility of a seventh , the investigating officer . ... It was never ever intended for the investigating officer to be there ... No , no , no , it was . It was intended ... So , he was recently appointed now in our office ... So , at the time of this operation , he was now in your office ? ... That is correct .”

Mr Nxumalo was directing the investigation and communicating with the investigating officer on where to go and what to do, effectively telling police how to conduct the investigation.

“Mr Nxumalo is asking you for numbers ... he , in fact , at chart number 5 , tells you that the investigating officer will call you . So , he is in touch with the investigating officer , and he is now arranged with the investigating officer to call you .... you had a complainant who was directing this investigation and telling the police what to do , where to go .... That is the impression I get from this .... Mr Nxumalo is directing the investigation on how it should be conducted .... you have a civilian who is a complainant , who is basically telling police what to do , when , where .”

A compromised police officer may try to endear themselves to an investigating officer, showing concern for safety and trying to gain information.

“A cover operation where you endear yourself with the person, showing interest in their safety, showing interest in what is happening with them, and then at some point say there is an informer that told me that there is a bribe available.”

Compromised officers might test an investigating officer's susceptibility to bribes by hinting at bail opposition or hiding evidence in exchange for money.

“Could you have a situation where the compromised officer tests whether the investigating officer is susceptible to a bribe by saying, I heard that there is a bribe out there if you are willing not to oppose bail or if you are willing to hide evidence.”