ADV BALOY ISC

The information was physically put under Advocate Baloyi's door, evidencing that it was not properly obtained.

“It was put under my door, so we know he did not get it properly.”

Funds access in the covert environment is an issue of concern due to alleged motivations and previous cases of state funds looting in similar environments, not directly related to IDAC.

“I have no sympathy for people who loot state funds ... But this case ... is a serious abuse of power by IDAC to target a civilian...”

The exercise of investigative powers to charge gratification under PRECCA was done without proper consideration and facts, suggesting it might be an arbitrary use of power potentially for ulterior purposes.

“the exercise of the power to investigate and to charge an offence of gratification under PRECCA was exercised without proper consideration, without facts placed properly, and I underline properly, placed before you and the prosecutor... it is a use of investigative powers for ulterior purposes.”

The section 27 affidavit only lists suspicions without substantiation and does not contain facts that ground reasonable suspicion of serious high profile corruption, commercial or financial crime; relying on it for investigation is fishing and outside powers.

“All that affidavit does is tell you that a civilian was unduly benefited over employees within Crime Intelligence. That is all it tells you... it is actually irrelevant for purposes of your decision, what triggered your decision... All that affidavit does is to list suspicions. It does not say what is the basis of those suspicions... Otherwise, you are going to be fishing... Your mandate and your powers do not contemplate you doing that.”

IDAC undertook a fishing exercise by investigating despite lacking a reasonable basis or jurisdiction as required by the trigger provisions; the investigation was not properly triggered.

“This is a typical fishing exercise. Your mandate and your powers do not contemplate you doing that. That is why there is that trigger provision. But in this case, it seems there was a failure in that trigger, you just did not have enough to trigger that investigation...”

No lawyer in the offices told ADV JOHNSON that they lacked jurisdiction to prepare charges even after the preparatory investigation.

“No.”

Chief Perumal acted outside prescribed protocols by consulting witnesses and potential complainants before deciding to take on a case, contrary to intended operating procedures.

“you acted outside of a prescribed protocol in that you went and consulted with a complainant, a potential complainant, even before a decision was made to take on this case for investigation”

Chief Perumal acted outside of prescribed protocol by consulting complainants or witnesses before a decision was made to take on the case, contrary to operating procedures restricting such premature engagement.

“that you acted outside of a prescribed protocol in that you went and consulted with a complainant, a potential complainant, even before a decision was made to take on this case for investigation”

There must be formal process and recording when seeking clarifications from referees in section 27 inquiries; casual or undocumented engagements create a lack of accountability.

“I would expect that in that process of seeking clarifications, that is a formal process, it is recorded ... otherwise ... there is no accountability whatsoever”

Mr Adams stated he has intelligence documents that were placed under ADV BALOY ISC's door which suggest General Khumalo and others have committed offences.

“Mr Adams tells you that I have intelligence documents that were shoved under my door and from those documents, I have even more reason to believe that Khumalo and them, General Khumalo and them have committed offences”

ADV BALOY ISC asserts that ADV JOHNSON acted on Mr Adams' affidavit solely on suspicion without having factual basis and failed to refer the intelligence documents to the proper authority.

“You have acted on his affidavit solely on suspicion. You did not have any facts to action anything in his affidavit. That we have settled. He gives you information that tells you I have, not only in my possession, I have had sight of Crime Intelligence documents that someone gave to me and I do not know who put them under my door. That seems to me a classical case of you should have referred this to somebody.”

Within team discussions on investigations, disagreement and debate are allowed including decisions not to proceed with certain actions like arrests.

“In that exchange where you say there is consultation and discussions and debate , do you have the – are you able to say, I disagree and so it will not happen?”

Labour laws and disciplinary codes require giving employees an opportunity to make submissions before suspension can take place; instant suspension without such process would be an unfair labour practice.

“How it works is you give the employee an opportunity to make submissions about why they should not be suspended if you are considering to suspend them and depending on what they say, it depends what they say because you have to take into account what they say in their submissions and then you make a decision. Anything other than that is in fact an unfair labour practice, which our law punishes.”

There is an ongoing investigation around allegations that Warrant Officer Sander is involved in the distribution of drugs which has not yet cleared him.

“There was an investigation around allegations of drugs, that the Warrant Officer Sander is involved in the distribution of drugs... that investigation has not been concluded as he was not cleared”

The investigation could not reach the complainant concerning the drug allegations against Warrant Officer Sander, and despite attempts to contact, the complainant has not been found.

“The investigation is still continuing... we tried to get hold of the complainant, and we have not found the complainant... We have emailed the complainant...”

The drugs were tampered with to take samples prior to official booking, but this tampering was not implied negatively.

“they were tampered with to take samples ... I am not saying it in a negative way”

On 23rd June, exhibits were placed in evidence bags but not recorded, and on 24th June, Mpangase was instructed to book the exhibit at SAPS Port Shepstone and take further samples.

“all you do is you go to put the exhibits in evidence bags and nothing more ... Mpangase is saying he got instruction to go and book the exhibit at the SAP 13 in Port Shepstone and further takes samples”

The SAP 13 Clerk completed the register without seeing the exhibits or having the evidence bags and evidence bag numbers.

“So the SAP Clerk did not see the exhibits. So the SAP 13 was completed with the SAP 13 Clerk without seeing the exhibits”

Colonel Jacob stated in his own statement that they conducted a count of animal feed bags corresponding with the packing list and then released the container. However, LT-COL Sibiya clarifies they went back for further inspection and rejected that it was only a count.

“We conducted a count... We proceeded there. We conducted a count of that number of bags of animal feed. This corresponded with the packing list, and then we released the container... He does not say in his statement, we went back for further investigation... I do not understand why that is your problem”

ADV BALOY ISC suggested to Colonel Jacob that the return visit to the container was a charade to give the appearance of continuing an investigation when in fact there was nothing amiss.

“I suggested to him that this was a charade... It wanted to give appearances that we continued to investigate the docket. There was nothing amiss. This was a serious matter. We were investigating the docket. That is why we went back on that day, and I do not accept that explanation”

Contrary to LT-COL Sibiya's claim, ADV BALOY ISC asserts that the container was not emptied and the evidence that the labourers emptied the container is contradicted by the Commander who was in charge on the day.

“You did not empty the container. Your Commander, who was in charge of the scene on the day, said you did not empty the container. You took out the first few bags, and from the first few bags you knew that all is good... So you are contradicting Colonel Jacob again when you say the labourers emptied the container. That is not his evidence”

ADV BALOY ISC accuses Colonel Jacob of lying about the container not being emptied, stating that Colonel Jacob was untruthful when saying only the front bags were taken out and the container was released after verifying the smell and the packing list.

“So, Colonel Jacob lied to us when he said the container was not emptied, only the front bags, and then you checked around and you were satisfied from the smell and the number of bags that correspond with the list that all is good? He was untruthful when he told us that is what happened”

No recorded communication exists between Colonel Jacob's team, Brigadier Nyuswa, General Senona, and national Pretoria FS lab requesting transport of exhibits for destruction or storage.

“We do not have any record of communication from your people, including you, Nyuswa, you and General Senona, we do not have any record of communication to the national, to Pretoria FS lab, requesting that these exhibits should be transported there...”

Colonel Jacob confirms that he originally decided the exhibits would be stored at Isipingo Police Station where he was in charge.

“You made the original decision that these exhibits will go to Isipingo Police Station. That was your decision. You were in charge at that time.”

The individual gave a statement denying presence at the 1 July inspection, which Colonel Jacob argues is clear and not open to interpretation despite conflicting accounts.

“He has filed a statement. He says I was not there ... I think we are at a point where the Commission, it is not a question of interpreting the statement. I think the statement is very clear what it is conveying”

South African Revenue Service (SARS) had issued a detention notice for the container as early as June 14, 2021, although the container shipment arrived on June 21, 2021.

“On the 14th of June ... there is a stop, a detention notice for State Vet. So by the time it lands, it is been identified for detention. And if detention is by a State Agency, such as the SARS, according to this document ...”

ORS members were asked to give a lift to take drugs from Amanzimto to a Police Station.

“we know from other evidence that ORS members, I think, if I am not mistaken, were asked to give a lift to take these drugs to Amanzimto Police Station.”

An inconsistency exists because SARS issued a detention notice on June 23, 2021, which suggests that the container was still under customs control when it was supposedly cleared on June 21, 2021.

“How can this container be cleared already on the 21st if SARS on the 23rd issues a notice of detention on it? It suggests that it is still under the control of customs.”

If a narcotics presumption test kit is not available at a scene, police normally seal the findings and take them to storage and subsequently to FSL for testing.

“you would simply seal whatever you are finding in the bag and then enter in whatever record, and then take it to storage, hopefully straight to FSL.”

Adv Baloyi denies that anyone told Warrant Officer Phakula that the drugs would disappear or that there was urgency.

“he did not say to you the drugs are going to disappear ... He never said that to you ... And you never said to us there was urgency”

Warrant Officer Phakula initially testified that he did not touch the bags found on the bakkie to avoid contaminating the exhibits, but later admitted that he did touch them, contradicting his earlier testimony.

“You are now relying on the obvious test that you see to try to bolster your version that you did smell ... You said to us in your testimony earlier, you did not touch those bags that you found ... you said, I did not want to touch the bags ... Now you say you touched it.”

The crime scene was initially reported by Warrant Officer Phakula as being handled properly with everything in its original place and not tampered with, but photos later showed a bag was open and torn, contradicting the statement.

“The crime scene was handled and there was nothing out of place ... A bag was open and you lied and said the scene was intact ... The two versions cannot stand ... The exhibits were in their original form, not tampered with.”

Warrant Officer Phakula admitted that he touched the exhibits at the scene, contradicting his earlier statement that he did not touch them to avoid contamination.

“You are saying to us now that you in fact did touch the exhibits while you were on the scene.”

Warrant Officer Phakula contradicted his earlier testimony by stating that he did touch the exhibits, and admitted that one of the bags was open at the scene, which was the only way he could have touched it.

“The issue now is the scene being, you say you touched, a bag was open. That is the only way you could have touched.”

Warrant Officer Phakula accepted that he contaminated the crime scene by removing and relocating seals from the original position contrary to crime scene management protocols, although he said it was to keep them safe for the photographer's access.

“He wanted to put them safe where the photographer can be easily accessed ... You know that is against the protocol ... Yes ...”

The bags were not opened before arrest; thus, the arrest was based on unconfirmed suspicion and hearsay from an informer.

“You are the one that effects an arrest based on suspicion of matter that you have not even had a look at... All you have is black bags.”

The arrested driver was employed by Scania and had the container sealed from origin (Brazil). No evidence the driver broke the seal.

“We established earlier that the truck belongs to Scania, and the driver is employed by Scania... container which has a seal to it ...”

The letter does not convey that charges have been withdrawn provisionally, contradicting earlier statements asserting provisional withdrawal only.

“'So this letter, on its face, does not convey that charges have been withdrawn provisionally. Do you accept that?' - 'Maybe. It does not say that.'”

Warrant Officer Mpangase functioned as the investigating officer or "owner" of the enquiry in this case, being very active and responsible for investigation follow-ups.

“Warrant Officer Mpangase is quite the active person with this enquiry... would he have been therefore the owner of this enquiry?”

There is an anomaly regarding two different registration numbers in affidavits and agreements related to the sale of a truck.

“you have those two different registration numbers ... in paragraph 4 of Bheki's affidavit ... is KN33 RNGP ... in the agreement itself ... the registration number is a different registration number”

The documents do not reflect a legitimate sale from Ngaphesheya to Mr Ngoato, making them suspect and possibly crafted to explain cash possession.

“these documents do not reflect a sale by your brother's company to Mr Ngoato and therefore ... make their validity or their purpose to be suspect”