The docket disclosed to the commission was incomplete, comprising only one of two parts, with the second part still being provided and not yet available during the hearing.
“the docket disclosed to us, which we have been working off from yesterday, is incomplete. So it transpires that there are some documents we did not get, and the explanation for that is that the actual docket is actually in two parts. We seem to have been furnished with the one part”
The A32 affidavit is a complete affidavit covering the entire investigation from start until the building of the warrants of arrest; it is an ordinary affidavit without specification of its purpose on the document's face.
“Then you will have an affidavit. It is a complete affidavit that covers the whole thing, covers the start until the building of the warrants of arrest. Excuse me. Until the warrant of arrest. It means it gives you the whole package up until the warrants. The other, A32, is just a plain affidavit. The heading is affidavit. I undersigned, Brian Padayachee. So that is an affidavit. It does not say what it was furnished in support of. It does not say the purpose for which the affidavit was signed on the face of the document itself. It does not”
The A32 affidavit is referred to as an 'anchor affidavit' by the investigators because it contains the entire scenario from start until end, and it is intended for court use.
“A32 is what we call an anchor affidavit... It contains the whole scenario of everything, from start up until the end... It is for the court... So that is why us as investigators, we call it an anchor affidavit”
Colonel Padayachee refers to an affidavit dated 11 August 2025, described as an anchor affidavit providing background to the whole investigation.
“we have been furnished with the affidavit that Colonel Padayachee refers to ... it is a 13-paged document ... we call it an anchor affidavit, which gives you background into the whole investigation”
There were two disclosures of documents; the first from A1 to A27 was disclosed at court but not to the Evidence Leader; a second disclosure included further documents up to A36, which were sent thereafter.
“We had two disclosures. The first one from A1 to A27, not to the Evidence Leader, but when we were disclosing at court. And then we had a second disclosure... when I was looking into it, I see it is only up to A27 when there is an A36. So that is when I sent all the documents last night”
The investigation starts preliminarily upon authorization by management and legal decision-makers, based on briefing from the chief criminal investigator who they directly report to.
“the investigation starts preliminary ... It is a broad investigation from the briefing given by the chief criminal investigator, who we directly report to”
Preliminary investigations begin sometime in December 2024, with the authorization decision made by management and legal minds; the investigation is ongoing and builds until a docket is registered.
“investigation starts preliminary ... during December 2024 ... as a result of that authorization, we have the preliminary investigation which comes down to our level ... We start ... in December 2024”
If preliminary investigation finds no supporting evidence, the investigation is closed; if evidence of a committed crime is found, the investigation proceeds with gathering more evidence and registering a docket.
“if we find that there is nothing, then we will have to close the investigation because there is nothing ... But if we find something, a crime that has been committed, we have already started the investigation ... We will start by getting more evidence to support this crime ... We need to register this docket”
In this investigation process, affidavits may be taken early but the docket itself may only be officially opened months later, for example statements taken in January but docket opened in June.
“you will find that some affidavits are taken in January, which is a start, but the docket is opened in June ... You have taken a statement in January, but your docket is opened in June”
During the investigation, allegations are made and the next step requires looking for supportive evidence and serving subpoenas on national commissioners for documents.
“There are allegations that are made. So the next step is to now go and look for supportive evidence ... We compiled a subpoena and we served documents on the National Commissioner for various documents”
Investigators conduct investigations, gather affidavits, and present their findings to prosecutors who decide whether there is enough evidence to support charges and possibly draft charge sheets.
“We do the investigation. After we are done with the investigation, it is presented to the prosecutors. Is there enough in your investigation to support a charge?”
General Masemola, the National Commissioner at the time, declassified classified documents related to promotion appointment dockets, personal files, vetting files, and secret service accounts, which helped confirm certain allegations.
“The National Commissioner at that moment was General Masemola. He declassified all those documents, and there were quite a number of files that he brought to us.”
Once prosecutors are satisfied there is enough evidence, they start draft charge sheets, memos, and present the case to the Deputy Director of Public Prosecutions who must agree to proceed.
“Once they are satisfied that they have sufficient, they will start with a draft charge sheet. They will start with a memo, and then they will present that to the Deputy Director of Public Prosecutions who is responsible for that leg or team.”
Bail affidavits and charge sheets are prepared for serious offences (Schedule 5 and others), followed by court arrangements and affidavit scrutiny by magistrates who may request rectifications if unsatisfied.
“Because of the nature of the offence when it comes to a schedule 5 offence or more serious, we prepare bail affidavits. We have got the bail affidavits, we have got the charge sheets, then the next step is the making arrangements for the court. The applications for the J50s are done. You go to the Magistrate. You present your affidavit to the Magistrate, and it is scrutinised there, and obviously sometimes they are not satisfied with it. They say they are not satisfied with it, so you have to go back and rectify whatever queries they have. At the end of the day, the warrants are issued.”
Police officers execute arrest warrants in a professional manner and notify suspects to come with their legal representation before executing warrants.
“Although we have a warrant of arrest, we do not go to your home. We phone you, please come with your attorney, your legal representative, I have a warrant for you. Please come to the police station with your legal representative where the warrant is executed and processed, and thereafter the court process.”
Investigators do not have insight into section 27 referrals; they receive briefings from the Chief and trust the guidance provided at management level which authorizes proceeding with investigations.
“I have never received ... In all the investigations that I have conducted ... I have never had insight into the 27. From the briefing, we are getting a briefing. Because it is handled at management level and dealt with there, for us it is just the authorisation, proceed with your investigation.”
Investigators, including Colonel Padayachee, rely entirely on briefings and do not participate in the formulation of charges or have authority over charges, which are prosecution-led decisions.
“I have no authority. That is for the prosecutors to determine. It is their space because they must decide, because it is prosecution-led. They decide to prosecute or not to prosecute.”
The investigation presented contained misrepresentation of fraud, but prosecutors independently determine whether charges of fraud or corruption stand.
“we found there are misrepresentation fraud in your investigation ... But where we – I am not sure this is going to answer your question ... do we influence the prosecutor to say, no, look here, this is fraud, this is corruption ? No . We do not have control over that .”
A report by Lieutenant General Jacobs, dated 30 July 2025, records the chronology of events known to the Inspectorate from the moment the docket issues arose in Cape Town.
“MK 15 is a report by Lieutenant General Jacobs ... This report you will see is dated the 30th of July 2025 ... this report records everything ... that transpired from the moment they ... became aware of the issues referenced in section 27, particularly the dockets opened in Cape Town.”
There was an administrative error resulting in Colonel Padayachee receiving only two pages of the MK15 annexure out of more than 20 pages.
“when this document was shared ... he only got two pages of the entire bundle ... he only got two pages of that ... the original Annexure MK 15 ... should be complete for our purposes ... he appears to have received only two pages ...”
Colonel Padayachee only received three pages of Annexure MK 15 instead of the full more than 20 pages, which was due to administrative error by the Commission.
“The Commission administration failed him. It is correct, he only got three pages of Annexure 10 MK 15, which is made up of more than 20 pages. Technically, what appears to have happened is somebody decided to draw out only the first three pages of Annexure MK 15 and provide him that”
The purpose of providing witnesses with documents in advance is to enable them to familiarize themselves and consider them in the context of their testimony.
“The purpose... of giving the witnesses the documents that evidence leaders intend to rely upon ahead of their appearance, is to enable them to familiarise themselves with their contents and to consider them in the context of their own testimony.”
Colonel Padayachee was deserving of the Commission's apology for only receiving part of the documents.
“Colonel Padayachee was quite correct. That is what he received. I do not understand how, but this is where we are. But I think he is deserving of the Commission's apology.”
The Commission seeks to treat all witnesses fairly and provide them opportunity to file supplementary affidavits if documents presented during testimony are new to them.
Annexure MK15 is a report by Lieutenant-General Jacobs dated 30 July 2025, containing a series of annexures referenced in the report.
“Annexure MK15 is actually a report of Lieutenant-General Jacobs, as I had indicated, dated 30 July 2025. And you were able to establish that attached to that report are a series of annexures that he references in his report.”
The second and third dockets in Cape Town were also opened on 29 October 2024 at 14:30, confirmed by Colonel Padayachee.
“And the next one, which would be at page 305... And that too bears the date of 29th of October 2024 and inserted a timestamp of 14.30. The third then would be at page 308, and that once again is 2024-10-29 at 14.30. I confirm.”
The first docket in Cape Town was opened on 29 October 2024 at 14:30, confirmed by Colonel Padayachee.
“You confirm that? I confirm. So that is my first date. I have confirmed that the first docket in Cape Town was... opened on the 29th of October at half past two.”
Honourable Fadiel Adams opened cases in the Western Cape on a number of senior SAPS personnel as per CAS dockets from Grant Central and Orlando SAPS in October, but those dockets were intercepted and investigative interference was occurring from the Gauteng Police Department similar to the Western Cape PC.
“I have opened cases in the Western Cape on a number of senior SAPS personnel as per following CAS dockets as per Grant Central ... I was told that the dockets were intercepted ... I travelled to Gauteng and opened following dockets as per Orlando SAPS ... the Gauteng Police Department has followed the same modus operandi as the Western Cape PC and is interfering in the investigative process”
The Ministry of Police received a complaint from a Member of Parliament about interference or interception of CAS dockets in Western Cape and Orlando, and urgently instructed a report from the investigating office by 4 November 2024 at 15h00.
“The Ministry has received this complaint from the Member of Parliament ... regarding interference or interception of both sets of dockets ... Your report is expected on Monday 4 November 024 at 15h00.”
Emails on 1 November 2024 triggered a flurry of activity culminating in urgent requests to deal with a complaint and to provide a report by 4 November regarding interference matters raised by Honourable Adams at 8:00 in the morning.
“So our next date is this flurry of activity on the 1st of November triggered by Honourable Adams' complaint to the Minister at 8.00 in the morning ... engage the province directly ... urgent request to deal with”
The Office of the Minister directed the complaint to Major-General Sibula and Brigadier Lethoko to ensure urgent attention and action was taken on the complaint regarding interference with the investigative process.
“The Office of the Minister immediately acts upon this and directs the complaint to be dealt with and directs that complaint to Major-General Sibula and Lethoko”
On 1 November 2024 at 11:45, a communication from within SAPS requested urgent attention and feedback must reach the Office of the National Commissioner and the Office of the Minister by specified deadlines concerning the complaint.
“Kindly see the email below for your urgent attention and important, feedback must reach the Office of the National Commissioner on Monday 12h00 and report to the Office of the Minister by Monday 4 November 2024 at 15h00”
An email addressed particularly to Colonel van Rooyen requested urgent registration of the case into N16 of 2017 VS2 and engagement of the province directly with deadlines for reporting back set for 4 November 2024.
“Please ensure that this is urgently registered into N16 of 2017 VS2 ... Please take note and deal with this immediately and engage the province directly ... Also note the deadline set for Monday 4th of November”
The complaint and report activity regarding interference related to CAS dockets was required to be reported to the Minister's office by Monday 4 November 2024 at 15h00, as confirmed by Lieutenant-Colonel Bapela's email.
“Lieutenant-Colonel Bapela specifically requests that the report be provided by 12 00 on Monday, 4th of November ... it is confirmed in the email at page 282”
A report by Major-General Acting Divisional Commissioner Inspectorate NMD Ladla dated 4 November 2024 outlines the opening of two sets of dockets and discusses criminal allegations against Generals Khumalo, Lushaba, Madondo and Brigadier Ncube including abuse of secret service accounts, cover-up of criminal incidents, tax evasion, and nepotism.
“The criminal allegations in the six cases which were opened are levelled against Generals Khumalo, Lushaba, Madondo and Brigadier Ncube and are centred on four specific matters, namely: Abuse of Secret Service Account ... Cover-up of criminal incident linked to Villieria CAS number ... Failure to address Major-General Madondo's results of the polygraph examination ... Practices of nepotism”
General Sibiya signed a report on 5th November 2024, which was later signed by the Minister of Police, E S Mchunu, on 8th November 2024, without any comments from the Minister.
“General Sibiya , who signs it on the 5th of November 2025 , with no comments . And then the third signature is , once again , over leaf , at page 288 . And that appears to be the signature of the Minister of Police , E S Mcchunu , MP . And it is dated 8th November 2024 .”
The Minister's Office received the report on 5th November 2024, a day after the 4th November deadline was missed.
“the Minister 's Office appears to get this report on the 5th . And we see that from the date stamp on page 285 . ... So they missed that 4 November deadline by a day ? ... Indeed .”
Mthokozisi Nkabinde, Chief of Staff in the Ministry of Police, signed a document dated 11 November 2024 addressed to the Investigating Director, Advocate Johnson, referring to a referral and request for investigation under the National Prosecuting Authority Act.
“it is signed Mthokozisi Nkabinde , Chief of Staff in the Ministry of Police and it is dated 11 November 2024 . ... the subject line is : “ Referral and request for investigation in terms of section 27 of the National Prosecuting Authority Act , Act 32 of 1998 , read with the National Prosecuting Amendment Act , Act 10 of 2024 . ””
Honourable Fadiel Adams made a complaint implicating very senior members of the South African Police Service in relation to the Langlaagte CAS case and others opened between 29 October and 1 November.
“The allegations contained therein implicate very senior members of the South African Police Service and are reviewed in a serious light and CAS dockets were registered as follows . ... one Langlaagte case and three of those Orlando cases that Mr Adams registered between the 29th of October and the 1st of November .”
The complaint docket numbers for Langlaagte, Orlando, and Cape Town are mixed up due to precinct jurisdiction issues, causing confusion in investigations.
“If I can explain these CAS numbers , it is a mess . ... The way we look at it is that he went to a station and he opened those dockets there . But they were in a different police precinct . So this Orlando station was supposed to forward it to the respective station it belongs to . And then they would register it under their station name . So that is why when you look at it , I see Orlando CAS 402 . But I know the docket as Villieria CAS 403 and 404 . ... But when you check in the Villieria CAS system , these CAS numbers do not exist . It is because it belongs to another station , not Villieria .”
Fadiel Adams opened different CAS cases in Cape Town, Orlando, and Langlaagte police stations to ensure complaints reported in Cape Town did not disappear, but did not specify the nature of the Langlaagte case complaint.
“he states : “ A few days after I opened the three cases at Cape Town police station , I decided to go to Gauteng and I went to Orlando Police Station where I opened another three cases based on the three cases I opened in Cape Town . I did this to ensure that what I had reported in Cape Town does not disappear . I also opened a separate case at Langlaagte police station . ” ... He does not say what the Langlaagte case is about .”
There were complaints about nepotism involving other Colonels in Crime Intelligence, and complaints about defeating the ends of justice, but no case was opened in Cape Town, Soweto, Orlando, or the Villieria precinct relating to corruption and fraud involving Brigadier Mokwele's appointment.
“there is one about nepotism , but it relates to the other Colonels in Crime Intelligence . That is what the story is . And there is complaints about defeating the ends of justice . That is what the other complaint is about in the dockets . But there was no case opened , either in Cape Town or in Soweto , Orlando , of corruption and fraud relating to the appointment of Brigadier Mokwele .”
The docket or affidavit referenced does not specifically name a Brigadier, only mentions nepotism and family members generally.
“in the docket or the affidavit that was there , there was no specific name to a Brigadier or anything , just nepotism and family members and stuff like that that was mentioned”
The case dockets opened in Cape Town and Orlando related to the complaint express concern that colonels employed in Crime Intelligence were unsuitable for their appointed posts.
“The cases that were opened in Cape Town and Orlando relate to this complaint ... It is concerning to note that all the Colonels employed in Crime Intelligence , none of them are suitable for the post to which they are appointed”
Due to the sensitive nature of the widely announced allegations by the complainant, a legal opinion must be sought before launching any criminal investigation.
“Due to the sensitive nature of the allegations which has been being widely announced by the complainant , it is imperative that before any criminal investigation is launched , your office peruse the affidavits to provide a legal opinion on whether the element of a crime exists and to advise on a way forward”
Colonel Phillips was tasked to obtain an affidavit from the complainant, but the complainant appeared to be evading the request.
“Colonel Phillips of this office was asked to obtain the affidavit . However , after numerous attempts , it seems as if the complainant is evading the request”
The Inspectorate is still seized with the complaint and trying to establish facts and is seeking a legal opinion from the SAPS Legal Services Department.
“the Inspectorate is still seized with the complaint and trying to establish facts and to determine the complaint as proffered by Mr Adams . And for that purpose , at this point , they are now seeking a legal opinion from the , internally , from the SAPS Legal Services Department”
Colonel Phillips expresses the view that the affidavits in the dockets are basic and lack the element of a crime but directs all dockets to Legal Services for an opinion.
“The affidavits in the dockets are basic and , in the opinion of this office , lack the element of a crime . The author expresses that view , sends the dockets to Legal Services and say , can we get an opinion whether or not what is in the dockets discloses a crime ?”
The preliminary investigation was approved on 6 December 2024 and the investigation team was briefed soon thereafter.
“The preliminary investigation was approved on the 6th . So maybe on the day after or a few days after , the team would have been briefed . ... The preliminary investigation approval on the 6th of December , and we would have been briefed within that short period after that approval.”
There was a WhatsApp communication dated 6 December 2024 from IDAC to Major-General Khumalo regarding the Fadiel Adams dockets.
“Good day, General. Please let me know when I can call. It is in connection with the Fadiel Adams dockets. IDAC is here with me pertaining to the dockets”
Rapetsu fetched the dockets on or about 6 December 2024 and the briefing took place on that day.
“Rapetsu who went to fetch the dockets must have went on that same day, which means that the briefing would have taken place on that particular day too”
Rapetsu assisted in the investigation team by retrieving dockets and working on the Lushaba matter and the Brooklyn CAS 542 docket related to Mokwele.
“with Rapetsu, he assisted on the first one and the second one, meaning with the Brooklyn CAS 542, which is the appointment of Mokwele. His starting point was getting the dockets, and I know that he worked on the Lushaba matter”
Rapetsu was junior to Colonel Padayachee and rendered assistance as directed but was given instructions by the Chief.
“I s he a junior to you? Yes. So for purpose of this particular investigation, he would have been somebody who is rendering assistance to you, and he executes such duties as you direct. Yes, but just to go back again, it is not me giving him directions and instructions. It is the Chief that gives the instructions as to what we have to do”
The Chief investigator provides instructions for necessary actions in the investigation, but routine or simple tasks may be directly directed by the lead investigator to assistants like Rapetsu without needing to go through the Chief each time.
“At the start of the investigation, remember there is a number of allegations. So the specific, like example, the dockets, now he has got that, but with the particular dockets that I am working with, if there is something I need in that, I would task him. It does not mean that I must go to the chief to tell him, he is working with me, we are together, and he is assisting on it, so I can say, you know what, do a section 28 there, or get me this, that. I do not mean that every time I need him or somebody else, it has to go through the chief. The chief is just there to brief on the different investigations, this is yours, yours, yours, you can do this, this, this, and it goes forward from there. And then obviously the feedback will go and the monitoring of the process will go back to him.”
High ranking police officials were involved in manipulating promotions and security vetting processes to unduly benefit civilians, but no concrete facts are provided to support these allegations in the document.
“It says that high ranking police officials were involved in ... manipulating promotions ... manipulating security vetting processes to unduly benefit a civilian ... you would have to state facts, concrete facts that make you come to the conclusion that this was manipulation.”
Colonel Padayachee states that the docket information and affidavit lacked sufficient detail such as the names of people involved and the methods used; therefore he sees the document as a preliminary allegation requiring further investigation and confirmation.
“The docket had sparse information on it ... the who's and the how's are missing from it ... when I look at that now, I take that as a preliminary that this is an allegation that has been made. I need to now investigate and confirm what this is ...”
The initial docket mentioned General Khumalo appointing family members and friends in positions at Crime Intelligence, but this was insufficient and needed more information.
“The initial docket just talked about General Khumalo, if I can recall, appointing family members and friends in positions at Crime Intelligence ... it needed more information.”
The legal department concluded that no supporting evidence is contained in the dockets to substantiate the claim or to afford further investigation of leads regarding an alleged cover-up of Villieria CAS 38/08/2022.
“No supporting evidence is contained in the dockets to substantiate the claim or to afford the further investigation of leads in support thereof. That is the conclusion of the legal department.”
Major-General Madondo allegedly failed a polygraph examination in July 2024, and Brigadier Ncube was tasked to ensure the matter would not be addressed or investigated.
“The complainant alleges that Major-General Madondo failed her polygraph examination in July 2024, whereafter the Head of Vetting, Brigadier Ncube, was asked to ensure that the matter would not be addressed or investigated.”
Lieutenant-General Khumalo allegedly appointed friends and family members in the division without providing details of their identities, which hindered investigation into the allegations.
“No details are provided regarding the identity of the friends and family members of Lieutenant-General Khumalo, who was allegedly appointed in the division. (This would at least have enabled the investigation into the allegations.)”
Senior service members were allegedly instructed to ensure that the Villieria CAS 38/08/22 case was not investigated, but no statements about this are filed in the docket.
“Neither the particulars or statements of these senior members of the service who were allegedly instructed to ensure that Villieria CAS 38/08/22 is not investigated, nor the statement of the sex worker are filed in these dockets.”
Only the complainant's A1 statements are contained in the six dockets with no other evidence, making it impossible to determine proper jurisdiction due to lack of location information.
“Only the complainant's A1 statements are contained in the six dockets. No other evidence is contained in the dockets. The lack of location information makes it impossible to determine proper jurisdiction at this stage.”
The complainant alleges that none of the people appointed in Crime Intelligence have the necessary skills, qualifications and experience and that many appointees are associates and relatives of Lieutenant-General Khumalo.
“The complainant alleges "none of the people appointed in CI have the necessary skills, qualification and experience", and that many of these appointees are associates and relatives of Lieutenant-General Khumalo.”
Secret Service Account was abused by Lieutenant-General Khumalo and Major-General Lushaba, who failed to pay authentic sources but channeled funds to purchase vehicles for the KwaZulu-Natal Political Task Team, a private service or front for former Police Minister General Bheki Cele.
“It further alleges that the Secret Service Account was abused by Lieutenant-General Khumalo and Major-General Lushaba, who failed to pay authentic sources but channelled funds to purchase items such as vehicles for the KwaZulu-Natal Political Task Team. According to the complainant, this task team is a private service to or front for the former Minister of Police, General Bheki Cele.”
The complainant's allegations regarding General Cele are unsubstantiated and amount to personal opinion with no evidence or leads provided to assist an investigation.
“At this stage, the complainant's allegations regarding General Cele are unsubstantiated and amount to no more than the complainant's personal opinion. No evidence or leads are provided to assist or afford an investigation into the allegations.”
Family members were appointed in one docket together with other matters, and their appointments are repeated in another docket.
“When you look at the docket, you will find that the appointments of family members is in one docket together with something else and it is repeated in another docket.”
The dockets related to the allegations in Gauteng are duplicates of those opened in Cape Town, with no explanation for opening second set of dockets in another province on the same allegations.
“The three dockets that were opened in Gauteng are merely a duplication of the three dockets that were opened in Cape Town. No explanation is provided regarding the opening of these second set of dockets on the same allegations but in another province.”
The Legal Services is unable to confirm that the required elements of any offence are contained in the dockets due to scanty and vague information.
“The current information contained in the documents is scanty and too vague to formulate charges against any suspects. As a result, Legal Services is unable to confirm that the required elements of any offence are contained in the dockets.”
The dockets are sparse on details and based solely on unsubstantiated hearsay evidence, making it difficult to determine the merits of the allegations and identify the correct charges.
“The dockets are sparse on details and based solely on unsubstantiated hearsay evidence, which make it difficult to determine the merits of the allegations and to identify the correct charges.”
Colonel Phillips stated in his report that the complainant's statements were superficial, based on hearsay and did not contain all elements of the alleged offences, and attempts to obtain evidence from the complainant were unsuccessful.
“In his report, Colonel Phillips states that the complainant's statements were superficial, based on hearsay and that they did not contain all the elements of the alleged offences. It further details his communication with the complainant and the attempts that he made to obtain evidence in order to support the allegations, which the complainant alleged to be in possession of. These attempts proved unsuccessful.”
The Inspectorate did not do its work properly as it failed to investigate further into allegations in the dockets, even though it is its role to conduct inspections and investigations.
“On the basis of this report, if the Inspectorate, for me, they did not do their work because they should have investigated further. They are the Inspectorate. The Inspectorate does inspections.”
There is an allegation of cover-up in a docket linked to Villieria CAS 404 and discrepancies in affidavits within that docket.
“...the Villieria CAS 404... it makes an allegation about a cover-up of a case. If they took that docket and they looked at the docket on the Villieria CAS 38, as inspected, if they looked in it, and they would have found discrepancies in it, which would eventually confirm that there was a problem in that docket, because affidavits were tampered with in that docket.”
Lieutenant-General Khumalo was involved in a cover-up of CAS 38 where an official laptop and cellphone were stolen by a sex worker, with monies from the Secret Service Account used to pay the sex worker and purchase new equipment.
“Lieutenant-General Khumalo was involved in the cover-up of the CAS 38 wherein Major-General Lushaba, the Division Crime Intelligence, where an official laptop and cellphone was stolen by a sex worker. Monies from the Secret Service Account was utilised to pay for a sex worker and purchase new equipment.”
The docket for CAS 404 contained an allegation of cover-up against General Khumalo but lacked necessary facts to support the complaint.
“404 say that General Khumalo was involved in a cover-up, and the summary, as I understand it, of this docket, 404, is it lacks the necessary facts to support the cover-up complaint.”
The Inspectorate received many complaints including the allegation of cover-up by General Khumalo, and they investigate even scant complaints starting with a CAS number and a link to the station.
“The Inspectorate, any complaint that is given to them, they receive many complaints. They will go and look at what the complainant is saying, even if it is scant, go and look at it. Try to determine what is this person saying. But here you have a CAS number, a starting point, a link. Go to the station, you do not even have to go, you summon the docket.”
Major-General Lushaba was subjected to an internal investigation alleging she was drugged, but she had a hospital examination report which no one looked at to confirm the claim.
“Major-General Lushaba was a victim of so-and-so, that he was drugged. When we looked there, Major-General Lushaba says she went to the hospital for examination. That hospital examination report, nobody looked at it to confirm whether...”
Colonel Phillips reviewed docket 404 and found it did not contain any facts in support of the allegation of a cover-up involving General Khumalo.
“Colonel Phillips says, I have looked at 404, it does not contain any facts in support of the allegation of a cover-up. Not the loss of a computer that you find in 38, but allegation being there has been a cover-up and the 404 statement, A1 statement, does not provide any information that points to that cover-up.”
There is specific evidence in the docket pointing to defeating the ends of justice, but no evidence linking General Khumalo to a cover-up.
“There are allegations here which have substance, but in this docket I cannot find anything that links General Khumalo to a cover-up. So that is where he would stop because that is where he is.”
Major-General Pienaar did not conduct a proper investigation in a particular case as she stated she was not an investigating officer and left it there, causing the disciplinary process to fall away.
“There was no proper investigation done by General Pienaar on that particular case. So the disciplinary often that fell away”
The complaint involved the use of Crime Intelligence funds to cover up that General Lushaba lost a laptop and to pay off a sex worker.
“Crime Intelligence funds were used to cover up the fact that General Lushaba lost the laptop, involved in some other things, and they did this by using Crime Intelligence monies to buy a new laptop for him and to pay off the sex worker”
General Khumalo denied any interference or cover-up of docket CAS 38, asserting no complaint of such interference exists.
“There is no complaint to interference with the docket ... There is a cover-up in relation to that case ... not that he tampered with the original docket or there is anything in that docket”
The referral to IDAC concerns the abuse of Crime Intelligence monies and is limited in scope, not allowing investigation into other aspects of General Pienaar's conduct.
“the referral sent to you is limited... It was not an opportunity for you to go fish for other things that Pienaar did or did not do right”
There is an allegation that General Khumalo was involved in a cover-up related to the loss of a laptop involving Crime Intelligence funds.
“where General Khumalo was involved in a cover-up of a docket or cover-up of Lushaba or however it is... the allegation that General Khumalo covered up a docket”
Lieutenant General Khumalo was involved in the cover-up in Villieria CAS 8/8/2002, which is a docket related to the abuse of secret funds to cover theft and pay off a sex worker and buy equipment for General Lushaba.
“Lieutenant General Khumalo was involved in the cover-up in Villieria CAS 8/8/2002... The second part of it is monies were used from the secret service account to pay a sex worker and new equipment for General Lushaba”
The police do not do proper investigations and often dismiss complaints as nothing substantial, leading to public frustration with no response over years.
“The police do not do proper investigations. We thought about a link, a lead, follow the lead and see where it takes you... The South African public that write complaints to the police and sit in vain and wait for years, they get no response.”
The complainant alleges manipulation of promotional and security vetting processes to unduly benefit a civilian person employed by BMW who was appointed as a Brigadier and Head of Technical Support Service in Crime Intelligence without policing or management experience.
“Here is an allegation of a high-ranking officer involved in manipulating promotional and security vetting, so the undue benefit of a civilian person who worked for BMW South Africa before being appointed as a Brigadier and CI... She had no policing experience, no management experience and was appointed as the Head of Technical Support Services.”
The complainant suggests the need to collect all SAPS prescriptions and policies about promotions and security vetting processes to determine if there was manipulation or departure from prescribed processes.
“You have to collect all the prescripts and policies of SAPS that relate to promotions and security vetting processes... We must have put up something to say this is how the process should run. And when we look into the facts of this case, this is how the process ran and therefore we suggest manipulation or departure from the prescribed process.”
The initial summons to BMW in the investigation was issued on 31 January 2025 and was the starting point of requesting employment-related documents for Mrs. Mokwele.
The investigation process identified Mrs. Mokwele as the subject related to BMW through inquiries even though initial documents only referenced BMW generally.
“By the time we prepared the summons, we knew who she was. Through investigation we identified her and we knew who she was.”
The investigations relied on an A1 statement that mentioned BMW but did not name Mrs. Mokwele initially, requiring further investigation to identify her.
“First of all, on the A1 statement, paragraph 2, there is no name of Mrs Mokwele on there, just BMW”
Name and identification details of Mrs. Mokwele were obtained through investigative inquiries and speaking to relevant personnel, not initially included in the docket files.
“Through that investigation and asking questions and stuff like that I got these details. But it was not full details.”
The detail about Mrs. Mokwele's identity within Crime Intelligence was provided by Colonel Holtzhausen who gave a statement that is later included in the docket.
“The person that came up with Mokwele and the details is when, which, who I called and interviewed and eventually took a statement from, which is in the docket, was Colonel Holtzhausen.”
The investigation started with only the name Mrs Mokwele and the general link to BMW, and only later were detailed documents and identities obtained from the National Commissioner and BMW in February 2025.
“All we had was the name. We did not know exactly initially which BMW it was ... It is when we got the actual documents from the National Commissioner and that you will see we got it in February.”
Investigations involve issuing subpoenas to National Commissioner for specific documents related to security clearances and vetting files of implicated individuals including Mrs Mokwele.
“you issue a summons to the National Commissioner... It is security clearances and vetting files for seven people. This is the six SAPS members plus Mokwele”
The investigation focused on Mrs Mokwele's file regarding possible manipulation of the vetting process for her appointment and requested all vetting and clearance documents relevant to implicated people.
“we are investigating the appointment of Mrs Mokwele and we know from A1 that there is an issue about possible manipulation of vetting processes... We do one subpoena for all the files of people that we are investigating... When you see Mrs Mokwele , on this document there for the 8, so this section 28 with all her documents is in this docket”
Investigations into General Khumalo's vetting file are part of other investigations backed up by section 27 affidavits.
“There is an investigation with regards to General Khumalo and his vetting file... It is backed up by the investigation that we conducted... all those investigations are backed up by the requisite section 27 affidavits.”
The investigation seeks to obtain vetting files for all implicated people in various investigations to look holistically at their personnel and vetting records.
“it is all people that is implicated in various investigations that we looked at their personnel files, their vetting files... we want all the files to look at holistically what is there”
The Chairperson asserts that for an investigation to properly begin under Section 27, the investigating officer must see the relevant referral; without seeing the referral, the officer is effectively investigating in the dark.
“You must see that referral, otherwise you are investigating in the dark.”
Colonel Padayachee admits he did not initially see the Section 27 referral which triggered the investigation, acknowledging this creates a 'serious problem'.
“You say you never saw the referral ... I understand ... I did not see the Section 27 ... that creates a serious problem.”
Colonel Padayachee admits to conducting a bona fide investigation originating from a briefing by his Chief Investigator, despite acknowledging there were suspicions and allegations surrounding the investigation.
“I did a bona fide investigation ... I proceeded with it ... there are suspicions, allegations surrounding this investigation ... I conducted an investigation that flew from a briefing from my chief investigator.”
The Chairperson says that Colonel Padayachee effectively did something wrong by not properly following up an A1 report and related Section 27 referral, stating he performed his functions perfunctorily.
“I will tell you that you actually did something wrong. You get the A1 after the briefing by your chief ... The A1 which you have agreed ... is sparse. Here is what was wrong ... You seem to have performed your functions perfunctorily.”
The Chairperson accuses Colonel Padayachee of having an A1 report which was sparse in content and which should have triggered him to check what was referred to and to see the related referral, implying a failure to thoroughly investigate.
“You have this A1. It is sparse. It should have triggered in your mind what was referred to us in the first place and you should have gone to see what was referred.”
Summons dated 6 February 2025 referenced investigation into serious fraud and corruption committed within SAPS, invoking section 28(13) of the NPA Act.
“The information required from you relates to the conducting of an investigation into serious fraud and corruption committed within SAPS ... invoke section 28(13) of the NPA Act ...”
The Investigating Director (ID) must have a docket for each individual where complaints or allegations about vetting and security clearance are raised; investigations cannot be random or arbitrary.
“There must be a docket for each one of them that raises issues about their vetting and security clearance.”
There is an investigation into manipulation of security services vetting processes resulting in unlawful issuing of security clearance for certain individuals including Khumalo, Lushaba, Madondo, Ncube, and Dobie.
“The investigation pertains to manipulation of security services vetting processes which resulted in the unlawful issuing of security clearance.”
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 investigations that start into vetting manipulation can uncover other related corrupt or fraudulent activities during the course of the investigation, which then need to be pursued further.
“If something else came up where we found more corruption or we found more fraud, we continued with it because that investigation started at a point where it uncovered other stuff.”
Investigations into security clearances and vetting are only lawful when there is a written authorization in terms of section 28(1)(a) or a section 27 affidavit authorizing the investigation.
“IDAC cannot decide to wake up in the morning and decide that it is going to inquire into security clearances and vetting ... where it is lacking in a section 27 affidavit or it does not have a written authorization in terms of section 28.”
The initial subpoenas for investigation were sent to BMW and involved looking into security clearances from Brigadier to Lieutenant General level within SAPS.
“The very first subpoena you send to the National Commissioner ... is to BMW ... looking into security clearances of people from Brigadier level to Major General level to Lieutenant General level ... within SAPS.”
Ms Johnson's affidavit suggests a competitor to the position to which Ms Mokwele was appointed was also implicated in planning to capture Crime Intelligence.
“Ms Sellos says that was a competitor for the position that Ms Mokwele was finally appointed to ... Ms Johnson says ... they are planning to capture Crime Intelligence if they have not already.”
Seven people including Ms Mokwele and General Khumalo are implicated as part of a scheme to capture Crime Intelligence.
“There are seven people ... one of them is Mokwele ... General Khumalo ... all of those you have accused of being part of the plan to capture Crime Intelligence.”
Investigation arose from complaints or allegations of manipulation of vetting processes and abuse of power regarding appointments to Crime Intelligence.
“The allegations only come forward to fact when we find that the processes have been manipulated ... appointment and vetting processes ... manipulation of security vetting processes ... abuse of powers.”
Colonel Padayachee confirms that the investigation is focused on unlawful or irregular appointments and vetting processes.
“The appointments and vetting processes of the people who are alleged to have been unlawfully appointed or irregularly placed ... in a position of power ...”
There were reasonable grounds to suspect that certain people were involved in allegations related to the capture of Crime Intelligence, leading to the request to verify and eliminate some documents.
“there were reasonable grounds to suspect that these people were involved in some of the allegations, so therefore, on reasonable grounds, these documents were requested to verify and eliminate”
There is no complaint or allegation in the Crime Intelligence file or any other document that Major General Madondo is involved in a scheme to capture Crime Intelligence.
Colonel Padayachee admits he did not have authorization from the Investigating Director to investigate further related matters beyond section 28(1)(a) referral authority.
Colonel Padayachee states he bases continuation of investigations on the presence of a criminal offense committed, applying law to specific things.
“you are investigating an allegation here, or you are investigating something that has taken place there, but further stuff coming, I will continue on the same basis. On the law part of it, you know, it is there, there is a crime being committed, so I am applying that to that specific thing, if there was a criminal offense committed there.”
Investigations related to Crime Intelligence fall within the scope where allegations are made and similar offenses are followed up within ongoing investigations.
“We are in the same scenario or the same investigation of Crime Intelligence within there, where the allegations is falling within Crime Intelligence, and within that same investigations, you are picking up similar stuff that is there, similar offenses that are there.”
Colonel Padayachee clarifies he does not have a free hand to investigate everything without authorization, but continues investigations within the scope of Crime Intelligence and related similar offenses based on applicable law and reasonable grounds.
“It is not about a free hand to investigate everything and anything. We are in the same scenario or the same investigation of Crime Intelligence within there, where the allegations is falling within Crime Intelligence, and within that same investigations, you are picking up similar stuff that is there, similar offenses that are there. We continue with it because it is still there. But if it is something else...”
The vetting process for Brigadier Mokwele's appointment did not follow the normal process and she did not have a PERSAL number at the time.
“she was a civilian and there was a certain process that followed , that did not follow the normal process . For example , she did not have a PERSAL number , but it is stated there that her vetting was captured on the system”
If corrupt or fraudulent appointment processes are found within investigations, these will be investigated as well.
“If we find, for example, there is another Brigadier, right, a person that is appointed irregularly, processes were manipulated, appointments, too were manipulated in the sense that there was corruption, there was fraud, there was misrepresentation, we will investigate that, too, as well whilst we are there.”
General Khumalo and other officers in Crime Intelligence, including Madondo Lushaba, were suspected of manipulating procurement processes to appoint and promote certain members to high strategic positions within Crime Intelligence.
“I suspect that General Khumalo and some other officers in Crime Intelligence , including Madondo Lushaba , were manipulating procurement processes and processes to appoint and promote certain members to higher strategic positions within Crime Intelligence .”
Mr Adams wants IDAC to investigate appointments of various secret service offices in the country because such offices are likely points for laundering money out of Crime Intelligence without detection.
“Mr Adams would like IDAC to please investigate appointments of the various secret service offices , not officers , offices in the country , because that is the likely point for that money will be laundered .”
The investigation into these appointments focuses on possible unlawful promotions and manipulation of recruitment and vetting processes.
“You will agree it is way beyond the scope of determining whether or not the appointment of Brigadier Mokwele was as a result of manipulated processes , recruitment processes and vetting processes .”
The summons issued on 6 February 2025 signed by Advocate Johnson requests original personnel files for senior officers of SAPS including Khumalo, Lushaba, Madondo, Moyana, Ncube, Van Vuuren, Mokwele, and Bobi, regarding promotions and appointments.
“This summons requires all original files , records , correspondence , and documents regarding the promotions , appointments of the following senior officers , Khumalo , Lushaba , Madondo , Ncube , Van Vuuren , Mokwele , Bobi .”
The appointments of the persons listed including Khumalo, Lushaba, Madondo, Moyana, Ncube, Van Vuuren, Mokwele, and Bobi are under investigation, specifically their promotions.
“During the briefing by Chief Investigator Perumal , the appointments of these people mentioned here , right , and this is what we were requested to subpoena because the appointments are also under investigation .”
There is a complaint about appointments of Lushaba, Madondo, Moyana, Ncube, Van Vuuren, Mokwele, and Bobi, which is the subject of a lawful investigation by IDAC.
“The same with Lushaba, Madondo, Moyana, Ncube... Van Vuuren, Mokwele and Bobi. There is such a complaint.”
Colonel Padayachee confirms he cannot give details beyond his own investigation and that others must respond to the section 27 and 28 complaints.
“I cannot answer for somebody else and I cannot go any further than that... The people that can answer to the section 27, 28, they have to come and respond.”
Colonel Padayachee feels his testimony is challenging and affected by public/media perception, and he is caught between being seen as accused or witness but wants to assist the Commission.
“It is also affecting me... I try not to look at the TV or social media but it is there... I am coming here as a witness to assist the Commission... I am coming here as a witness and assistance... I am coming here as a witness to assist the Commission and be of assistance.”
Employment as a gratification can involve appointing a person in a position for a particular advantage, exemplified by a retainer payment in the Thales matter related to former President Jacob Zuma, where the timing of when the retainer needs to act is unspecified.
“when we talk about a gratification and we talked about the employment as a gratification, but it is also some advantage that you put a person and you appoint a person in a place for a particular advantage ... When we look at the matter, in the Thales matter of the former President, Jacob Zuma and Thales, a retainer was given ... It is any given time. We do not know when it is.”
In PRECA, gratification involves receiving something in exchange for something else; accepting employment might constitute gratification, but there is disagreement on the interpretation.
“in PRECA itself, gratification is when you receive in exchange for something and that something is what the problem was yesterday ... does accepting employment constitute a gratification”
Colonel Padayachee was present and aware during the preparation of subpoena documents signed by Advocate Johnson, but the actual preparation was done by Chief Perumal.
“The section 28, it would have been done by Chief Perumal ... I would have maybe, you know, looked at, whilst he was preparing the document ... but he prepared it.”
Colonel Padayachee, as lead investigator for the relevant docket, is responsible for identifying and requesting specific documents and information such as personnel files for individuals including Mokwele and General Khumalo; some documents related to Khumalo fall under investigations handled by others like Chief Perumal.
“you are the lead investigator ... you are responsible for these requests”
Colonel Padayachee had knowledge of requests from BMW relevant to investigations and was physically present when the documents were prepared, confirming his awareness and involvement.
“I had knowledge. The request from BMW, I had knowledge ... I was right there when he was preparing it ... I am aware about it and I confirmed it.”
General Madondo and other people are also involved in other docket cases, so the Chief handles those, while the witness's specific matter concerns a request for Mokwele and Lushaba.
“because General Madondo and the other people are also in other dockets, so the Chief handles that. But my specific one would be a request for Mokwele and Lushaba”
Colonel Padayachee identified the need to request employment history and related documents from BMW, and would have sought such information with the Chief present.
“I would have asked, okay, I want the employment, the history, everything from BMW. And it would also, the Chief would have been there with me while we discuss it and then I would have said it like that”
Investigation cases initially have no CAS number but are allocated a CIN (inquiry) number which may contain many legs (sub-investigations) under that inquiry number, especially in crime intelligence cases involving multiple individuals.
“When you look at all the cases, the inquiry is on Crime Intelligence. It is, how can I put it to you, it is one investigation that has many legs, so it is got one inquiry number, so we use that reference... the inquiry number is CIN with different legs in it”
The CIN reference number includes a serial number and a date indicating the inquiry's opening date, here stated as 12 December 2024, marking the start of a broad Crime Intelligence inquiry.
“It is a serial number... When you look at it, it is December 2024... the 12th December 2024”
Before December 2024, there was no broad Crime Intelligence investigation opened; the first broad inquiry registered on the system was in December 2024, marked by CIN 130/02/12/2024 authorization document 2813.
“And before December 2024, there was no Crime Intelligence investigation broad... When you look at the 2813, when it was authorised, 2813, in December 2024, so that is where we take our cue from an inquiry in December 2024”
The ongoing broad investigation into Crime Intelligence includes the appointments and promotions of General Khumalo, General Madondo, and others, integrated under CIN 130/02/12/2024 inquiry number opened in December 2024.
“We now have come to understand that you are investigating specifically the Mokwele appointment, but that happens in the context of a broader investigation... with many legs. So we are trying to find documents pertaining to the investigations of the appointments and promotions of General Khumalo, General Madondo, all those people listed there... that investigation will be part of that CIN number 130/02/12/2024”
Most initial case files, including summonses or attachments, get transferred from the CIN file into the docket system, so the records sought would now be found in the docket and not as part of the original CIN file.
“Now, all the things that initially would have been in that file... most of them will be summonses or any other attachments, it gets transferred into the docket”
There has been no complete request for the entire record of decision from advertisement through to appointment of Mrs Mokwele; only portions including questions and assessments posed to the final interview candidates have been requested.
“In all these summonses, at no point do I see you requesting the entire, I will call it, record of decision from advertisement through to appointment of Mrs Mokwele... You call for some parts of the file, including, as I say”
Advocate Sello could not find the full docket of the recruitment process and suggests that if the full file existed it would raise problems because the charges drawn are inconsistent with the contents of the file they obtained.
“Firstly, I could not find it, and I say that mindful of the conversation we had in the morning that I may very well not have the full docket. But I could not find it. But if it exists in the terms that I described, then it creates another problem, because the charges that you draw up are inconsistent with the contents of that big file and I would like us to turn our attention to it.”
Colonel Padayachee asserts that they served the whole appointment process, including the advertisement and questions posed to candidates, in the original subpoena in February.
“Chair, Commissioner, we did. We have that in the original subpoena that we served in February, where we have the whole appointment process from the advert right down to the final part where it is, Mokwele is appointed.”
They obtained a version of the appointment file which includes documents such as the request for advertisement, internal and external advertisements, the list of applicants, approved selection panel, confidentiality declarations, shortlisted candidates, approvals, assessments, and announcements.
“We have obtained a version of that file and if we could go to file 2. For the moment, Commissioners, we can close the piles that have caused you to have opened and look at file 2. And in file 2, I invite us, Commissioners, to CJC 370 and that starts at page 172 with an index and what I call record of decision, that entire file. The first document there under tab A in that file is the request for advertisement. It is followed by an internal advertisement. The internal advertisement referred to the advertisement for the position as circulated within SAPS. You agree? Yes, 174, yes....Yes. Then it has got a copy of the external advertisement. It has what it calls an erratum and an extension of the closing date. That was the closing date for the applications. It was pushed out. Then it has got a list of those who applied. Then it has got a list of approved selection panel, declaration of interest and confidentiality, shortlisted candidates, approval of shortlisted candidates, applications for shortlisted candidates, invitation letters, security clearance, assessments, centre mark sheets, list of recommended candidates, minutes and announcements...”
The post in question was filled on the third attempt after two previous unsuccessful attempts in 2022 and 2023, culminating in the recommendation of Ms Mokwele in 2024.
“You are aware that this particular post was filled on the third attempt, the first having been in 2022, the second in 2023 and finally now in 2024, culminating in the recommendation of Ms Mokwele. You are aware of that? Correct. Correct, Chair.”
General Khumalo requested that a post be advertised internally except for the post of Section Head: Technical Support Services, which should be advertised externally.
“This officer requests that the post be advertised internally with the exception of the post of Section Head: Technical Support Services that should be advertised externally. And this is by General Khumalo dated the 9th of February 2024, addressed to the Divisional Commissioner: Human Resources.”
Lieutenant General Acting Deputy National Commissioner, Support Services L N Khuoa signed a list of posts to be advertised internally except one post, dated 10 April 2024.
“And this at 190 is signed by Lieutenant General Acting Deputy National Commissioner, Support Services, L N Khuoa, dated the 10th of April 2024.”
The approved selection panel was legitimate and had the final approval by General N Khuoa who had authority to approve or reject the panel or recommend amendments.
“So, I would suggest that there were legitimate panels put forward to, who I take to be the final decision maker, General N Khuoa, Support Services, who had the authority to reject the proposed panel or to accept it or to recommend amendments and changes. So, at the end of the day, she had the final say as to who constitute the panel.”
The selection panel for the post was approved by Lieutenant General Acting Deputy National Commissioner, Support Services L N Khuoa on 6 June 2024.
“At page 200, one sees that, and it reads: “Approval is hereby granted for the following selection panels to conduct the selection processes for the indicated posts.”... This second bullet point highlighted in yellow is our post. So, in both cases, these selection panels were approved. Do you agree? Yes, I agree.”
The selection panel was requested from Crime Intelligence and the panel was selected by General Khumalo and sent to Head Office for approval; General N Khuoa was Acting Deputy National Commissioner at the time and approved the panel.
“The panels are requested from Crime Intelligence, meaning these are the people that, you know, they request to be on the panels. So, it is a request from Crime Intelligence, General Khumalo, these are the people that I select for the different posts and panels and it is sent to Head Office, Human Resources and it gets approved there. So, the approval of the panel takes place there and the Acting Deputy National Commissioner at that time was General N Khuoa. She approved it.”
It is incorrect to say General Khumalo constituted the selection panel; she merely recommended it and the final approval was given by the higher authority, Lieutenant General N Khuoa.
“So, the only point I sought to make that it is not correct to say Khumalo constituted this panel, conducted interviews and ended up recommending Mrs Mokwele and suggesting that there was anything wrong with the constitution of the panel and I says so because the proposed panel, which I accept would have been put together by General Khumalo, was approved by the right authority within SAPS, which would be Lieutenant General N Khuoa in this case.”
General Khumalo selected the panel and recommended it for approval to Head Office; it is standard procedure that the Head Office must approve the panel and panel members are nominated by the selecting general.
“The panel was selected by General Khumalo, sent to approval for Head Office because he cannot sit or have those panels without approval. Head Office must approve it. So, that is basically the standard procedure. You nominate who you want on your panel and send it to Head Office. But the emphasis on the panel was selected by General Khumalo, for, he recommended it for approval to Head Office.”
General Khumalo, Head of Crime Intelligence, had the authority to select the panel for recruitment processes as allowed by SAPS prescripts, and the panel selection is subject to approval by Head Office.
“the prescript gives him the authority to choose that panel and then send it for approval”
General Khumalo selects panels and sends recommendations for approval to Head Office; this is the normal and usual process without indication of capture or irregularity.
“General Khumalo would have selected his panels ... it went to Deputy National Commissioner Sibiya to sign off and approval comes from the Head Office”
The appointment and constitution of a selection panel that appointed Mrs Mokwele followed the usual approval process, and there is no concern about its legitimacy.
“the same process was followed in 024, resulting in the appointment of Mrs Mokwele. So would you agree that ... there is no concern there?”
Colonel Padayachee expressed concern over the panel that appointed Mrs Mokwele, because although General Khumalo selected the panel members, the panel was not approved by him but only by Head Office, and the recommendations rarely changed upon Head Office approval.
“when we look at the panel of Mokwele, we had concerns there because he selected those people ... but the recommendations of the panels sent to Head Office for approval ... hardly changed”
Once a selection panel is approved by Head Office, it is considered an approved and authorised panel, and the Constitution or legitimacy of the panel is not an issue anymore.
“the panel is approved by Head Office ... there is nothing more we can say about it”
The recommendations for selection panels are normally not changed by Head Office and approvals represent routine confirmation of panel membership lists.
“it is very rare that head office is going to change it ... you can see the pattern that it is not changed”
IDAC inserted itself into the panel process questioning why Khan was not put on the panel, why others were selected, and why IDAC's role in Crime Intelligence interviews was challenged.
“IDAC inserted itself in the panel process, and IDAC said, why was Khan not put in the panel? Why was so-and-so put in the panel and not General Khan? Why does IDAC have that difficulty? Why is IDAC's business who should or should not be in the panel that interviews at Crime Intelligence?”
General Khumalo questioned why IDAC involves itself in the constitution of Crime Intelligence interview panels when General Nkhuoa and General Sibiyat approve and are happy with the panel.
“Is that not for General Nkhuoa and General Sibiyat to say, I am not happy with this panel or I am happy with it? If they are happy with it and they approve it, what business is it of IDAC to say, we would have preferred Khan there and not that person? Why does IDAC involve itself in those things?”
General Khumalo personally chose the panel and sent it for recommendation and approval, but there was concern that other Crime Intelligence Generals could have been selected for this sensitive and covert Crime Intelligence post.
“he chose that particular panel and sent it for recommendation, and it was approved. And the issue we have there ... other Crime Intelligence Generals that he could have used to sit on the panel because it is a sensitive Crime Intelligence post. It is a covert post.”
IDAC takes the matter to court to seek warrants for arrest expressing dissatisfaction with the panel composition.
“Why does IDAC go to court and say to court, I want warrants of arrest issued because I am not happy that in that panel that General was there and General Khan was not there. Why is it business of IDAC?”
General Khumalo had the power under the prescripts to constitute the panel, supported by approvals from superiors including General Sibiyat and General Nkhuoa.
“If the prescripts say the power lies with Khumalo to constitute this panel, what inference is there to draw when he does exactly that ... and this case, you are not drawing an inference of anything ... superior has approved ... General Sibiyat has approved ... General Nkhuoa approves.”
The panel constitution was approved by Head Office starting with General Khumalo's recommendation.
“although I am saying to you, the panel has been approved by Head Office, but the recommendation of that particular panel started with General Khumalo.”
IDAC's business should not involve objections to the constitution of SAPS panels when made under the prescripts and approved by superiors.
“The bottom line is, why is it IDAC's business when General Khumalo constitutes a panel that he is allowed to do by the prescript which does not say it must be constituted by people from Crime Intelligence ... you make up your law or your rules or your policy and say ... there should have been only people from Crime Intelligence because that is a sensitive area ... What is IDAC's business and interest in constituting SAPS panels?”
Colonel Padayachee stated the charge sheet incorrectly implied that General Khumalo chose the selection panel unilaterally.
“That is incorrect. It was not chosen by General Khumalo. The panel here, you are suggesting that the panel that interviewed these candidates was chosen by General Khumalo ...”
Colonel Padayachee admitted the panel was chosen by General Khumalo but it required approval by Head Office per the prescripts.
“It was chosen by General Khumalo, but it still has to be approved by Head Office, which is the prescripts as Commissioner ... The panel was chosen by him at that level.”
The charge sheet submitted to court did not reference that the panel had been approved by Head Office; this approval was omitted.
“Nowhere in this charge sheet do you speak of that panel being approved. That somehow is omitted in this charge sheet. Oversight, perhaps or whatever, I just want to establish as a fact that it is not there. The approval is not referenced herein the charge sheet at all.”
The facts in paragraphs 12.4 and 12.5 of the charge sheet, including details about the Technical Support Services unit and panel constitution, come from the Investigating Officer Khumalo.
“Where would the prosecutor get the facts that are put in 12.4 and 12.5 of the charge sheet? They come from you.”
Advocate Khumalo explained that although prosecutors draft the charge sheet, they rely on facts provided by the Investigating Officer; they do not create facts themselves.
“You give him the facts, he draws it up. It is like me when I say to my PA, type this for me, and they type. They do not know the facts, they type. Here he draws it up because you gave him this fact. He did not make them up. They do not come from him. They come from you as the IO.”
Adv Sello SC alleges that Colonel Padayachee was part of the creation or presentation of a document (an affidavit) used in court to support an application for warrants, and thus must accept responsibility for that affidavit.
“you were a part of its creation, alternatively, you approved it”
Colonel Padayachee refuses to take responsibility for the affidavit presented to court, stating only 'noted' because he has yet to appear with the same affidavit before a criminal court.
“I say noted, Commissioner, and Page 216 of 322 the reason why I say noted is that I still got to appear with the same affidavit before a criminal court, so I am saying noted”
ADV Baloyi SC asks about internal approval processes of charge sheets, questioning if the Head of Institution, Advocate Johnson, reviews them before they go out.
“In your internal processes, what happens ? How does this get approved ? Does it go through, does the chief investigating officer get a look at the charge sheet before it goes out ? Does the Head of institution, Advocate Johnson, do they look at this before it goes out ?”
Colonel Padayachee explains the charge sheet drafting and approval process passes from prosecutor to deputy, then to Head of Office and management for approval.
“The charge sheet is presented to the deputy, and from there it goes to the Head of office and the management from their process”
ADV Khumalo SC challenges the assertion that the panel appointment was irregular and asks Colonel Padayachee to confirm if he still insists that the panel was irregularly constituted after seeing the approvals.
“Do you still insist that the panel was irregularly appointed ?”
Colonel Padayachee further states that Khumalo chose the panel, but it was approved by the National level and not necessarily by Khumalo when finalized.
“He chose the panel . . . although the panels, when they get approved, not by him, it gets approved by National”
Colonel Padayachee states the panel constitution was properly authorized and constituted when approved, but the initial choosing of members by Khumalo was irregular and led to subsequent issues in the appointment of Mokwele.
“the panel was, when it was approved, it was properly constituted . . . But the choosing of the panel by him, where he chose particular people to be on the panel, that is what I found as irregular, the start of what led to the appointment of Mokwele”
ADV Sello SC and others question the relevance and implications of General Khan not being part of the panel, suggesting it implies exclusion and possible punting regarding him.
“Of what relevance is the fact that General Khan was not part of that panel ?”
Colonel Padayachee denies that General Khan's exclusion from the panel implies criminality.
“You are talking about criminality, about General Khan or whatever, that he was not on the panel, so that is criminal . . . That is not the inference that he was not on the panel, so no it is not criminal”
Colonel Padayachee says there are nine provincial heads in Crime Intelligence and three Generals, any of whom could have been chosen for the panel, not specifically General Khan.
“We have nine provincial Heads in the country, Crime Intelligence. We have maybe three Generals at Crime Intelligence. Anyone of those nine plus the three at Head Office could have been chosen to sit on the panel, not specifically Khan”
ADV Baloyi SC suggests the impression was created that the complaint in paragraph 12.5 is specifically about General Khan's exclusion from the interviewing panel, implying punishment for him.
“Taking issue in 12.5 is in fact about the exclusion of General Khan in particular from the panel, from the interviewing panel. That is the impression this paragraph creates . . . You were punting for him”
Colonel Padayachee states there is no prescript to exclude anyone from sitting on the panel regardless of CI environment membership; selection is approved externally.
“There is no prescript to say you cannot be on the panel, there is no prescript to say you cannot be on the panel, there is no. You choose your panel, and that is it. It is approved by the office.”
Advocate Sello cites that TSS is a very secretive operations unit within SAPS whose operations are unknown to most members and that it would have been reasonable for Accused to choose Major Generals from Crime Intelligence to reduce compromising the secrecy of TSS.
“TS S is a very secretive operations unit. TSS working on operations methodology practice and capability unknown to the majority of members of SAPS. It would have been reasonable to expect Accused to have chosen Major Generals from CI to reduce compromising TSS and its operations.”
Advocate Khumalo explains that the job requirements for the post are advertised and approved by SAPS and cannot be altered by IDAC after the fact to include covert criteria.
“So IDAC cannot make up the requirements of the job and say the post is secretive, it is this, it is that. The requirements are as advertised, because members of the public, when they apply for the position...”
Advocate Khumalo states that one could apply for the post with a three-year degree in law or B.Tech and that IDAC cannot disqualify candidates by claiming a covert nature of the post that doesn't exist in the advertised requirements.
“I could not be disqualified as a person with a law degree because this is covert, because that is not what is in the requirement. When I apply, I apply based on what the requirements say.”
Advocate Baloyi questions IDAC's concern over SAPS including someone outside of Crime Intelligence environment in a panel advertised externally.
“Why is it your business as IDAC that SAPS has allowed Accused 5 to be part of a panel and it is advertising externally in this what you describe as a secret environment?”
Advocate Baloyi criticizes IDAC for interfering in the SAPS Crime Intelligence personnel panel appointments which falls outside IDAC's statutory mandate.
“You are a creature of statute. When you raise a complaint, you were influencing the decision maker who is going to give you the warrants that you are applying for.”
Colonel Padayachee states that SAPS chose and externally approved the panel, despite serious corruption and arrests among senior management.
“We say that SAPS chose a panel, approved a panel, advertised it externally. When we look at SAPS today and the number of senior managers... and senior officers being arrested for corruption...”
Colonel Padayachee states the National Commissioner has been arrested for contraventions of the PFMA, which does not amount to corruption at this stage.
“The National Commissioner has been arrested for contraventions of the PMFA. That does not amount to corruption at this stage, sir.”
COLONEL PADAYACHEE indicates during his investigations, if he comes across corruption linked to his work, he will investigate it, including corruption linked to the panel selection.
“During the course of whatever investigation that I am busy, working with, and I come across corruption that is linked to what I am busy with, I will investigate that.”
The senior management of SAPS, including the National Commissioner, has many arrested persons for various offenses, leading to distrust in SAPS senior management.
“You say there is a lot wrong with the senior management of SAPS starting from the National Commissioner, a substantial number of whom have been arrested for whatever offences. And you then basically say therefore, you do not trust senior management...”
CHAIRPERSON accuses COLONEL PADAYACHEE of implying that IDAC arrogates power to oversee SAPS and questions the denial.
“That is exactly what you are doing. Why can you say no? Why can you possibly say no? On the explanation you gave in response to Commissioner Baloyi's last question, that is exactly what you said, or rather the impression you created.”
Colonel Padayachee interviewed General Khan regarding technical support post matters as he was a member of Crime Intelligence at the time.
“It was for the letter and to interview him with regards to the technical support post because he has been there in Crime Intelligence and was there at that time.”
Colonel Padayachee asserts that a letter related to Major General Khan is incorrect because it does not properly contain General Khan's details where required and that Brigadier Ncube authored the letter but General Khan's name is incorrectly placed on it.
“what I am saying is what I am seeing that is wrong with this letter. And I am saying this is Brigadier Ncube, she did this letter, but you put General Khan's name here on the top, who is the senior officer that should have signed off at the bottom.”
The letter claims that the applicant Ms D Mokwele submitted an online application for top security clearance through the South African Police e-Vetting system on 25 July, but this claim is incorrect as submission requires a force number which she did not have.
“This letter is incorrect. She could not submit an application on the e-Vetting system because you have to have a force number.”
General Khan complained that he could not understand why Major General Gabela was invited by General Khumalo to be part of the interview panel when Khan himself was available.
“I also cannot understand why Khumalo invited Major General Gabela to form part of this interviewing panel as I was available.”
Colonel Padayachee confirms that his affidavit copies nearly word-for-word a complaint originally made by General Khan about the involvement of Major General Gabela in an interviewing panel that Khan was not part of although available.
“I have already known about the post. ... It is part of mine. ... So, with regard to General Khan... it is a flow from his. It is not that I did not know about it... It is a flow in it. ... It is his affidavit... it is part of mine. ... it is a flow from his...”
Colonel Padayachee states that Major General Khan was the only General at Crime Intelligence besides General Khumalo; the other General was not present or suspended at the time.
“I think Major General Khan was the only General at that time at Crime Intelligence beside General Khumalo. The other General that was available was not there. He was suspended or I am not sure, but there were just the two Generals there.”
Adv Khumalo states that requirements for the job position have always been to favor candidates with specific qualifications (LLB, public administration) and having a three year degree, and these requirements are not new or fraudulent as claimed for 2024.
“Those requirements have always been like that. Three years prior, if you go to the 2022 advert on page 470 of File 2, they are identical. So it is not something new that was fraudulently introduced in 2024. You will see that it was always the case that they wanted somebody with LLB, some body with public administration, some body with three-year degree.”
The approved post in April 2022 had the same requirements as the earlier advertisements from 2022, 2023, and 2024, which were identical over three years.
“when you look at 2022, 2023, and 2024, the requirements are the same ... They were still the same over three years.”
Van Vuuren, who has 40 years experience and was the most suitable candidate, was overlooked and not shortlisted in a previous round that included General Khan, who was part of the panel previously.
“Van Vuuren that you say has 40 years' experience and could not, have not qualified for this position, was in fact overlooked, was not shortlisted in a previous round, which included General Khan ...”
General Khan was a member of the 2023 panel, and although he was not the one who nominated the interview panel, he failed to appoint a more competent and experienced senior officer from within Crime Intelligence.
“In the 2023 panel, General Khan was a member ... I believe that Khumalo did not nominate me ... I would have opted to appoint a more competent and experienced senior officer from within Crime Intelligence environment.”
Khumo, Madondo, Lekalakala, and Gabela unduly favoured Mokwele above experienced Colonels within the immediate environment who met all the requirements during the panel sittings.
“Khumalo, Madondo, Lekalakala, and Gabela, unduly favoured Mokwele above experienced Colonels within the immediate environment who met all the requirements during the panel sittings.”
During the interview, Colonel Padayachee had the file in front of him but did not provide the file to General Khan for him to view during the interview; despite this, General Khan was able to form a view about the file content.
“During the course of the interview, I had the file in front of me ... No, he was not provided the file ... For him to view the file, you must give it to him ... I had the file open and I was going through the file to ...”
Colonel Padayachee admitted retrospectively that it was not proper for him to provide the file to General Khan during the interview while taking the affidavit.
“No, I do not think it was ... I am sitting there and I am interviewing him and I am listening to him and taking an affidavit and then referring to the file ... I cannot see the reason why you say that I would have done something wrong by showing him the file.”
It is improper and highly influencing the content of General Khan's witness statement to provide him the file to review for preparation in circumstances where criminal charges are intended against senior members within Crime Intelligence.
“You are influencing the content of his witness statement ... That witness is no longer talking the absolute truth ... That is improper ... Have you ever given any other witness this file to say these are the contents ... ?”
Ncube compiled a letter falsely representing that Mokwele had applied to be vetted, which was untrue because she did not have a PERSAL number and could not apply.
“Ncube compiled a letter wherein she represented that Mokwele had applied to be vetted. This was not true, as it would have been impossible for Mokwele to apply as she did not have a PERSAL number.”
The invitation letters for recruitment required candidates to present original certificates, copies of qualifications, driver's license, and proof of security clearance application at the interview stage.
“The invitation letter actually instructs her to bring proof of such application. She does not have a PERSAL number.”
Ms Mokwele, a civilian candidate without a PERSAL number, could not apply for security clearance via the e-Vetting system, which requires a force number and a commander sign-off.
“She is a civilian. She cannot apply via the e-Vetting system. So this should have been brought to the attention of the panel when she went to the assessment centre... She does not have a force number, right? So what Brigadier Ncube did is that she went and did it via how you appoint a service provider... It cannot be captured on the e-Vetting system because she does not have a PERSAL number.”
The vetting process requires that shortlisted candidates must have at least applied for vetting before presenting themselves for an interview to avoid wasting time interviewing unsuitable candidates.
“They do not want to interview somebody who has not begun a process of vetting.”
Brigadier Ncube wrote a letter saying Ms Mokwele is a civilian who cannot apply via the e-Vetting system and that her vetting application was completed via a service provider at Inkwezi, which is unnecessary.
“Brigadier Ncube went and did it on the Inkwazi. Then she writes a letter, and in the letter she lies.”
Candidates without a PERSAL number or commander cannot be vetted via the e-Vetting system, which is problematic for civilians like Ms Mokwele applying for security clearance.
“You cannot get into the e-Vetting and log it because you do not have a PERSAL number and you do not have a Commander.”
Brigadier Ncube, head of the vetting system, should have known better than to improperly handle Ms Mokwele's vetting application by using Inkwazi service provider and writing an inaccurate letter.
“We are talking about Brigadier Mokwele who is the head of the vetting system that should have known better... But Brigadier Ncube went and took the same thing and done it on the Inkwazi. Then she writes a letter, and in the letter she lies.”
Ms Mokwele is charged based on a letter from Brigadier Ncube stating she was registered on the e-Vetting system, but she is actually registered on the Inkwazi system, and the letter makes no reference to her collusion or involvement.
“we have a letter from Ncube where she is saying that Ms Mokwele has been registered on the e-Vetting system, and Ms Mokwele herself knows that is not the fact. She is registered on the Inkwazi system. ... you do not implicate her in the Ncube letter because that letter says nothing about her”
The charge sheet includes a charge implying Ms Mokwele colluded with Brigadier Ncube to place her on the Inkwazi platform, but there are no facts to support this and the letter does not state it.
“You say she was in a conspiracy, she colluded with Ncube in a document... The Court sees, the Magistrate sees a charge sheet that says she colluded with Brigadier Ncube to be placed on this platform when you have absolutely zero facts that justify that... You made it up to include her in this charge”
Charging Ms Mokwele for being on the Inkwazi platform is petty and suggests an abuse of power and authority to victimize an innocent person since there are no facts to implicate her.
“It suggests something much more sinister because you do not have facts that implicate her in being on the Inkwazi platform... it speaks to an abuse of your power and authority to victimize an innocent person, at least on this charge, when you have no facts about it”
Colonel Padayachee acknowledges including Ms Mokwele on the charge sheet based on his affidavit and investigation, but he does not draft charge sheets or decide who is charged; that is the prosecutor's role.
“I note you say I included her on the charge sheet. I am at pains at that. It is my affidavit, my investigation, my affidavit... I do not draft the charge sheets and say whom must be charged... that is at the prosecutor's door”
A letter dated 25 July 2024 from Brigadier Ncube confirms Ms Mokwele submitted an online application on the SAPS e-Vetting system for top security clearance but states her eligibility is pending and not yet finalized.
“This confirmation letter... states that on 25 July 2024, the applicant Ms Mokwele submitted an online application on the South African Police Service, SAPS, e-Vetting system for top clearance security... the top secret security clearance application of Ms Mokwele... eligibility is pending and not yet finalised”
The letters reviewed do not constitute approval or grant of top secret clearance to Ms Mokwele; they only acknowledge that a process was initiated.
“None of these two letters constitute giving Ms Mokwele a clearance certificate... They are just recognising and acknowledging that a process was initiated”
Ms Mokwele could not register on the e-Vetting system because she did not have a force number and no Commander to assist; the vetting process had not started when she complied with the letter.
“What she did to get through and comply with the letter, she could not register on the e-Vetting system because she has no force number and no Commander.”
The earlier letter sent to Ms Mokwele before the normal vetting invitation letter was disadvantageous to her because it required her to do something not required at that stage.
“The fact that that letter was sent to her means it was disadvantaging her because it was requiring her to go through something which was actually not required.”
The charge sheet against Ms Mokwele was based on an affidavit compiled by Ncube, which included misrepresentations regarding Ms Mokwele's application on the e-Vetting system.
“In 8.9, Ncube compiled a letter, she misrepresented that Mokwele had applied on the e-Vetting system. This was not true... Through Ncube's unlawful and intentional action, Mokwele's application was registered to trigger the vetting process. And that formed the basis of the charge sheet.”
Colonel Padayachee did not notice inaccuracies regarding Ms Mokwele's involvement on the draft charge sheet and attached affidavit, proceeding without addressing potential errors.
“I did not take notice of it on the charge sheet... I did not take notice of it on the charge sheet. It was a draft charge sheet, I attached my affidavit to it and I went forward from there.”
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?”
Colonel Padayachee confirmed that the charge sheet and affidavit are compiled by the investigating officer and given to the prosecutor, who drafts the charge sheet usually in draft form.
“The charge sheet, the affidavit is compiled, it is given to the prosecutors. They compile the charge sheets and most often the charge sheet is in draft format...”
There is an expectation that the investigating officer should study the draft charge sheet to ensure it accurately reflects the case facts before presenting it to court.
“You should make an effort to study it and satisfy yourself that it accurately reflects what IDAC's case is against the people you seek to arrest and charge.”
Adv Sello SC alleges that Colonel Padayachee caused the arrest of a person who was not complicit in the crime as per the charge sheet, constituting an abuse of power.
“I do not, with respect, accept your explanation, Colonel. You caused for somebody to be arrested. Somebody who, on your own facts, was not complicit in the crime that you describe in the charge sheet. But because of your affidavit and the way the charge sheet is drafted, you caused for her arrest. That is irresponsible in the extreme. That is abuse of power”
Adv Baloyi SC explains that the charge sheet is drafted by prosecutors, submitted to management, and approved by higher authorities who rely on Colonel Padayachee's affidavit for approval, implying that Colonel Padayachee is responsible for the content of his affidavit and the charge sheet.
“they relied on your affidavit. They can say that, that they relied on your affidavit to approve this charge sheet. And it is simply not good enough that you have it attached to your affidavit and the charge sheet is attached to your affidavit and then you say, well, I did not see it. It is simply not good enough”
Colonel Padayachee states that prosecutors are the legal experts responsible for compiling the charge sheet and he takes note of Adv Sello SC's comments.
“the prosecutors are the legal experts in compiling the charge sheet”
Adv Sello SC states that when Colonel Padayachee signs an affidavit before a Commissioner of Oaths, he must know and take ownership of the facts therein, including the charge sheet; therefore, he cannot excuse ignorance on the basis that the charge sheet was drafted by a prosecutor.
“when you sign and stand before a Commissioner of Oaths, you represent that you know, and these are facts that are within your personal knowledge, you take ownership... You are responsible for this affidavit. You represent it to a court that this is your affidavit. It contains your truth... You cannot be excused on the basis that it is drafted by a prosecutor”
Colonel Padayachee asserts that civilian vetting is normally done through State Security Agencies, but he cannot point to a specific Act or Regulation mandating that civilian vetting must be done through the SSA.
“civilian vetting are normally done through State Security Agents... There is no particular Act or Regulation that I refer to... It is just a statement that I made”
Adv Sello SC challenges Colonel Padayachee's claim that civilian vetting where required must be done through the SSA, pointing out there is no legal source or policy prescribing this.
“What is the source of that claim?... Is it an Act? Is it Regulation?... you cannot then be correct that civilian vetting where required must be done through SSA”
Adv Sello SC quotes Colonel Padayachee's affidavit stating that the draft charge sheet outlines acts committed by seven suspects, including corruption, defeating or obstructing justice, and perjury.
“The attached draft charge sheet outlines the acts committed by each of the seven suspects in a very comprehensive way, which includes charges of corruption, defeating or obstructing the administration of justice, and perjury”
Colonel Padayachee does not presently have an answer regarding what defeating or obstructing the administration of justice means in the recruitment and vetting context and must review his documents to respond properly.
“I will have to look at this again and go through my stuff, Commissioner, to respond on that in terms of the charges that are there... what I am saying is that I have to go back and look at this part of the thing you brought to my attention now”
Colonel Padayachee cannot recall offhand what information was incorrect on the application form that relates to perjury, stating he must check back his records.
“I think it was on the application form. I just got to look back on my memory into it... No not offhand”
Colonel Padayachee says the undue advantage was that a clearance has been done meaning the application process registers the person on the system, although the final security clearance was not approved.
“The undue advantage is that a clearance has been done, meaning the application process that she is registered on the system... It is not the security clearance that is approved”
Colonel Padayachee explains that the undue advantage was related to manipulation of the vetting process of the application and letter, which prejudiced SAPS.
“The fact that of the manipulating of the vetting process of the application and the letter that is there, that it prejudiced the SAPS”
Ms Mokwele's appointment was conditional on her being cleared within six months and she was arrested before that period expired.
“Having been recommended, she had six months to get through the vetting process... She was charged before that six months even expired... She was arrested before that six months even expired.”
The charges against the accused are based mainly on the PRECCA legislation but also include other legal frameworks such as the Criminal Law Amendment Act.
“You place reliance solely on PRECCA for these charges because that is the only legal framework you are discussing... it is not the only one... you also rely on the Criminal Law Amendment Act...”
The draft charge sheet against the accused was prepared and put together by IDAC and not by the Director of Public Prosecutions.
“IDAC put together the draft charge sheet and not the other way around... It is IDAC that is presenting this to the Director of Public Prosecutions, not the other way around... including the draft.”
The draft chargesheet goes through management at IDAC before being sent to the Director of Public Prosecution.
“the draft chargesheet goes up to the Deputy Director of Public Prosecutions. It is presented before management, and once management has done ... The IDAC, the head of office with their management. They have it there, and then it goes to the Director of Public Prosecution”
Generals Khumalo, Madondo, and Lekalakala were granted bail with the condition prohibiting them from being at any Crime Intelligence premises while their criminal trial is pending.
“Generals Khumalo, Madondo, and Lekalakala have been granted bail with certain conditions ... that they were prohibited from being at any premises of Crime Intelligence within the Republic while their criminal trial is pending”
The bail condition prohibiting the accused from entering Crime Intelligence offices was not requested by the State Prosecutor at the time of bail application.
“that bail condition they were appealing was a condition not requested by the State ... the State never requested that they be denied access to all Crime Intelligence offices ... The prosecutor never made such a request”
The High Court found that the bail condition imposed without a party requesting it was arbitrary, incorrect, had no basis, and was beyond the magistrate's power.
“the High Court concluded that that bail condition ... that was no requested by the prosecutor. It had no basis and the Magistrate did not have the power to impose such a condition ... It was arbitrary and incorrect and does not reflect a proper exercise of judicial discretion”
The bail condition prohibiting Crime Intelligence officers with the Secret Service account from entering the premises was not requested by the Magistrate or the prosecution in open court, but might have been referenced in an affidavit.
“one of the conditions that I requested that the Crime Intelligence officers with the Secret Service account is that they be prohibited from entering those premises ... the main fact of it is that the Magistrate, the prosecutor, did not request for it”
The bail condition identifying Colonel Padayachee personally to assist the accused in collecting any items left at Crime Intelligence premises was imposed by the Magistrate without explicit discussion or request in open court and without the prosecutor's acknowledgment.
“that condition ... was never asked from the Magistrate ... it was never asked from the Magistrate ... the prosecutor did not put it to the Magistrate in open court”
Colonel Padayachee asserts that his name was included in the bail condition likely as part of his affidavit, and the purpose was to regulate access to Crime Intelligence offices, requiring individuals to contact him before visiting so as to control crime scene access.
“I think it was my affidavit or something. My name was mentioned there ... if they want to go to the office, they have to contact me before they go there”
There was a stringent bail condition imposed that effectively suspended the accused by prohibiting them from going to work, although SAPS had not suspended them.
“a condition that is so stringent that its effect is to suspend the accused because what it meant is that they could not go to work”
Colonel Padayachee spoke to the prosecutor about the bail condition before leaving court, but the prosecution did not request the bail condition restricting the accused from going to the office during bail deliberations.
“I spoke to the prosecutor before I left ... the prosecutor did not speak anything about not going to the office”
Colonel Padayachee wanted the bail condition restricting the accused from going to the office because investigations were ongoing on the Secret Service Fund documents and related cases including the recruitment and appointment of Brigadier Mokwele.
“we were busy with investigations on the Secret Service Fund documents ... this case was about the recruitment and appointment of Brigadier Mokwele”
The bail condition was used to gain a benefit in respect of other ongoing investigations that were not yet complete, unrelated to the current case before the magistrate.
“you are using this case to get a benefit in respect of other investigations that are not yet complete”
The prosecutor communicated to the Magistrate that the investigation was complete and there was no risk or problem with witnesses being intimidated, and they had not produced a list of witnesses.
“the prosecutor says our investigation is complete, we do not have a problem about witnesses being intimidated ... we have not even produced a list of witnesses”
The bail condition preventing accused persons from going to the Crime Intelligence offices was opposed by Colonel Padayachee and others at IDAC because those offices were busy with investigations.
“We opposed the bail conditions on what I put forward before you now, Commissioner. The fact that the Crime Intelligence offices were busy with investigations.”
The investigation in the Mokwele matter was complete according to the prosecutor, and there was no risk of interference.
“On the investigation that has been completed according to the prosecutor, your prosecutor, the investigation has been completed, there is no risk of interference.”
The decision to oppose the bail condition appeal was made collectively by Colonel Padayachee and the prosecutors involved in the matter who compiled the documentation for the appeal.
“I was part of the collective. That would have been myself and the prosecutors that were in the matter that put together documents for the appeal.”
There is no policy or protocol at IDAC guiding arrest decisions; investigation officers have discretion based on seriousness of the case and prevailing law.
“There is no policy or protocol that exists. With regards to the arrest warrants or whether J175, we look at the seriousness. In most cases, if it is schedule 5, schedule 6, the onus is on the accused person to put forward why they should be released on bail.”
Investigation officers at IDAC have discretion on how to secure the accused persons' appearance at court with options including arrest or summons, and no written prescription mandates arrests based on charge type.
“I am assuming that in accordance with prevailing law, IDAC's position is investigating officers have a discretion depending on the charge. Well, not depending on the charge. They have a discretion and you can say depending on what. And is that written or there is nothing. If there is nothing, there is nothing and you go about making your selection of the options available to you.”
There is no particular office policy requiring arrest for Schedule 5 offences; the decision to arrest is taken by the investigation team based on the seriousness of the charge and other circumstances.
“there is no particular policy that I know of there. It is when you are finished ... you have your chief criminal investigator ... say ... we are going to now prepare for the arrest ... The offence is a schedule 5 offence, and we proceed ... first of all, there is no policy that says this is an office policy. It is a decision taken there by the team”
For serious Schedule 5 offences, usual practice is to apply for an arrest warrant (J50) and to call the accused to the police station, rather than arresting them at their homes with handcuffs and blue lights.
“... the way we apply for a J 50 , it is a warrant, but we do not go to the person's house to execute the warrants ... we phone the person, come to the police station with your legal representative ... We do not go to their homes and place them in handcuffs and blue lights ... The warrant is just there so that we have it and what we call them to the station”
SAPS has a policy and national instruction (11 of 2019) encouraging issuing summons to secure attendance at trial rather than using arrest, reserving arrest as a last resort due to its drastic infringement on individual rights.
“SAPS has got a policy position about it and that policy position that has been adopted in the National Instruction 11 of 2019 ... arrest is one of these methods ... constitutes one of the most drastic infringements of the rights of an individual and a member should therefore regard it as a last resort”
SAPS national instruction advises members to always exercise discretion in deciding whether to arrest and to refrain from arresting if attendance can be secured by summons per section 4 of the Criminal Procedure Act.
“A member, even though authorised by law ... should always refrain from arresting a person if the attendance of the person may be secured by means of a summons as provided for in section 4 of the Criminal Procedure Act.”
ADV BALOYI SC questions why, given knowledge of accused details and availability of summons as a less intrusive measure, arrest is still the chosen method for Schedule 5 offences at IDAC.
“... why do you not issue a summons ... because you know that they will appear ... you know their details, you know where they work ... why do you not issue a summons to come and appear ... arrest is never an obligation irrespective of the offence ... but you seem to consider it an obligation when you say ... I have to arrest ... why was that not an option available to you ? Why did you not choose that option and chose the more intrusive and quite punitive way of bringing them to court ?”
COLONEL PADAYACHEE acknowledges the SAPS regulations and discretion each case requires, but asserts that serious Schedule 5 charges at IDAC are dealt with by applying for arrest warrants and calling accused to the station, not home arrest.
“I see the SAPS Regulation and the manner in which they do and each case is decided on its own merits ... When the matter is serious ... it is a serious charge ... schedule 5 ... the normal thing is that we apply for J 50 s ... the J 50 that we have is not taken to the person's house ... they are brought to the station and they are processed there ... The warrant is there in case ... the person does not report or decides ... to evade justice ...”
IDAC's modus operandi for arrests is to call the accused to the police station where they are arrested and processed; arrest is not conducted at the accused's home.
“... the modus is an arrest ... We are charging this person, we arrest ... That is how IDAC operates.”