Investigating Directorate

Advocate Hlatshwayo was appointed by the Investigating Directorate (ID) as the prosecutor on the case, and the initial prosecutor was Advocate Dr Ram Samy.

“she was appointed by the ID and I was told that initially the only prosecutor in the matter was Advocate Ramsamy, Dr Ramsamy, and that Hlatshwayo was then also allocated or at least designated to the matter around May, so earlier, just shortly before the arrest in this case.”

Advocate Ramsamy saw the section 27 referral document in the earlier part of the case but could not provide a copy as it was returned to the Investigating Directorate (ID) and appears to have been lost or is untraceable.

“Advocate Ramsamy said she saw it, I think in the earlier part of the case when they were starting the investigations. But it appears either it was lost or disappeared ... She said she gave it back to the ID. But it appears the ID was also looking for it from her.”

An ID investigator met with Advocate Serunye and others to confront her about her persistent requests for the section 27 document, angrily telling her the ID had seen the document and questioning her trust in the investigators.

“ADV SERUNYE”

There was nothing in the docket to sustain a charge against General Lushaba; the matter was regarded as untenable and concerns were reported to the team and the Investigating Directorate (ID).

“On page 232 of the material in the docket, there was nothing to sustain a charge against him, and I regarded the matter as untenable. I reported my concerns or views to the team and to the ID, as can be seen on Annexures PS11, 12, and 13.”

Advocate Serunye requested Mr Sesoko to attend a meeting to give feedback to the Investigating Directorate about his view that the docket disclosed no case.

“I am then saying to them: 'I am going to request Mr Sesoko also attends so that he can give feedback to the ID about my views.' I wanted him to be part of the meeting, and I can confirm the meeting was then held.”

ADV Serunye stated that after reviewing the docket and submissions, they were still of the view that there was no prima facie or winnable case to be made, and planned to provide a written report to the Investigating Directorate and the team.

“I am sorry to say that I am still of the view that we do not have a prima facie or winnable case . I will provide my written report to the ID , Mr Sesoko , and the team in due course .”

ADV Serunye did not provide the written report to the ID and Mr Sesoko due to events overtaking the matter, and ceased to be part of the case by 16 September.

“I did not , Commissioners . I am saying I was overtaken by – everything was overtaken by events here . This is 29 August , and by 16 September , I then ceased to be part of the case . I did not write the report , but it is the emails I sent them to the ID .”

Neither the ID nor ADV Serunye's colleagues responded to the email about the charges and case issues, though a robust virtual meeting was held on 29 August where ADV Serunye presented their views.

“No , the ID did not respond to me on the basis of this email , neither did the colleagues . The colleagues , at least , we had a meeting on the 29th . I remember it was a virtual meeting , a very robust one , where I sent out my views .”

A debate has been had about whether gratification charges were properly formulated based on facts, with Advocate Serunye expressing difficulties; the same discussion occurred with the ID, Mr Padayachee, and Ms Ramsamy, indicating these charges are a default fallback in at least these cases.

“We have had the debate about gratification , whether the charge has been – the charge is properly formulated on your facts , and you have expressed your difficulties with it . The same discussion was had with the ID , the same discussion was had with Mr Padayachee and Ms Ramsamy . So at least on these two cases , it seems to have been a default , maybe because nothing else works .”

Conduct of investigation authorized by head of Investigating Directorate related to serious high profile or complex corruption within SAPS under section 28(1)(a) of the NPA Act.

“The information required from you relates to the conduct of an investigation into serious high profile or complex corruption within the South African Police Services, authorised by the Investigating Director who is the Head of the Investigating Directorate, in terms of section 28 (1) (a) of the NPA Act, into allegations of the commission of the following offences, fraud, corruption, defeating, or obstructing of the administration of justice.”

A letter dated 11 November 2024 from the Office of the Minister of Police, signed by Chief of Staff Minister of Police Mr Nkabinde, was addressed to the Investigating Directorate requesting a referral and investigation under section 27 of the National Prosecuting Authority Act.

“it is dated 11 November 2024 ... it is a letter signed by, it would appear, the Chief of Staff Minister of Police, Mr Nkabinde, and it is directed to the Investigating Directorate ... shows as a heading referral and request for investigation in terms of section 27 of the National Prosecuting Authority Act”

Investigators' powers are derived from section 29(A) of the NPA Act and include investigative powers subject to control and direction of the Head of Investigating Directorate.

“...the powers are derived from section 29 of the NPA Act... gives investigators powers to deal with aspects of investigations subject to the control and direction of the head of the Investigating Directorate...”

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.”

The powers to institute and conduct criminal proceedings are vested in prosecutors and heads of prosecuting agencies and apply equally to the Investigating Directorate per sections of the Constitution and the NPA Amendment Act 10 of 2024.

“the power to institute and conduct criminal proceedings, and that in terms of section 20, 21... also applicable to the Investigating Directorate... section 29(a) of the NPA Amendment Act 10 of 2024”

The rights afforded under section 5(3) of the Constitution do not apply to a person who is not an accused person, but the third statement witness (Advocate Johnson) may invoke section 3(4) related to the right not to self-incriminate in this Commission inquiry.

“Advocate Johnson raises in the third statement the right not to self-incriminate and we have, I think, gotten to a point where at least she and I agree that she can invoke that right in response to specific questions as we go along”

Witnesses interviewed by the Investigating Directorate (ID) cannot refuse to answer questions on the basis of self-incrimination.

“the witnesses that are interviewed ... by the Investigating Directorate cannot refuse to answer questions on the basis that they would tend to expose themselves to a criminal charge subsequently”

The powers to institute and conduct criminal proceedings vested in prosecutors and heads of prosecuting agencies, as per sections 20, 21, and 179(2) of the Constitution, are also applicable to the Investigating Directorate.

“Those powers are also applicable, Commissioners, to the Investigating Directorate.”

The rights a witness claims under the Commission Act may appear greater than those afforded to persons interviewed by the Investigating Directorate, raising questions about consistency.

“the rights the witness seems to assert would appear on my reading to be greater than the rights afforded persons that are interviewed by the Investigating Directorate and wonder whether my interpretation is correct”

Upon joining the Investigating Directorate (ID), predecessor to IDAC, Advocate Johnson found several complex fraud and corruption matters implicating very senior SAPS members, especially in the SAPS supply chain management unit.

“When I joined the Investigating Directorate (ID), predecessor to the IDAC, there were already several complex fraud and corruption matters in place. These matters implicated very senior member of SAPS in alleged criminality. This was especially so in the supply chain management unit of the SAPS.”

Witnesses interviewed by the Investigating Directorate (ID) cannot refuse to answer questions on the basis that the answer would tend to expose them to a criminal charge, unlike witnesses summoned before a Magistrate's Court.

“that the witnesses that are interviewed ... by the Investigating Directorate cannot refuse to answer questions on the basis that they may incriminate themselves subsequently. They may not fail to answer any question put to them to the best of their ability.”

The investigation focuses on whether the Investigating Directorate (ID) operates outside its prescribed legal mandate as per section 7(1A) of the NPA Act, analysed solely on the affidavit's contents without considering subsequent facts.

“what we are trying to establish is whether IDA Cooperates outside of its mandate in terms of the prescribed legal prescripts, namely section 7 (1A) of the NPA Act. So our engagement is aimed at establishing that. That is why we are looking at the affidavit as it stands, and we are saying, would IDAC, looking at the affidavit, without the subsequent knowledge of facts that you came to learn about a year later ...”

Commissioner Mkhwanazi and others were subpoenaed by the Investigating Directorate for failing to declare Louis Vuitton handbags received from controversial businessmen and an ASPS supplier, Inbanathan Kistiah.

“Commissioner Mkhwanazi were last weeks slapped with subpoenas by the Investigating Directorate, ID, to explain why they failed to declare Louis Vuitton handbags they received from controversial businessmen and ASPS supplier, Inbanathan Kistiah”

The Investigating Directorate issued a subpoena listing specific requests related to the Louis Vuitton bags, including communication records, photographs, and sworn statements.

“It is that page of the subpoena. It is listing four items: '1. All ID/IDAC communications and/or subpoenas sent or served on Lieutenant General Mkhwanazi and/or General Fannie Masemola ... A photograph certified as a photo of the Louis Vuitton bag currently in the evidence locker or evidence room of ID/IDAC ... A certified copy of the sworn statement provided to ID/IDAC by the Brigadier that attended on the overseas trip with General Mkhwanazi and General Fannie Masemola'”

General Sibiya sent a message to Sergeant Nkosi on 8 February 2025 at 4 minutes past 8 in the morning confirming that the investigating directorate told the National Commissioner they are investigating General Khumalo and his team for a real list of offences.

“General Sibiya messaged you to say : It was confirmed that the investigating directorate told the National Commissioner today they are investigating Khumalo and his team , real list of offences .”