A court challenge by suspended police chief Bheki Cele could stymie the president's bid to save crime intelligence lynchpin Richard Mdluli.
President Jacob Zuma looks set to fire suspended national police commissioner Bheki Cele following receipt of a damning report into Cele’s fitness to hold office.
The three-person board of inquiry recommends unanimously that he should be sacked.
But Cele is fighting back. He has lashed out at the report as “a crude stitch-up job” and has given notice that he will seek an urgent court review.
Zuma set up the inquiry last year to consider Cele’s role in the police leasing scandal in which property mogul Roux Shabangu procured South African Police Service (SAPS) leases for buildings in Pretoria and Durban. Both were cancelled following an investigation by the public protector.
The report, which the Mail & Guardian has seen, was delivered to the president last Friday and urges him to remove Cele in terms of the Police Act.
Cele received a copy of the report on Tuesday and was given until the end of the week to make representations regarding its findings.
According to a reliable source, Zuma’s legal advisers suggested that Cele be given 10 days to respond but this was cut to four. The urgency, according to the same source, related to the need to “move forward within the police environment, considering the current situation”.
This “situation”, it appears, refers to the need to replace acting national commissioner Nhlanhla Mkhwanazi. He has emerged as unexpectedly resistant to executive interference with the investigation of crime intelligence lynchpin Richard Mdluli.
Mkhwanazi’s decision to give notice of his intention to suspend Mdluli again has the potential to torpedo the government’s efforts to rehabilitate Mdluli, despite the accusations of murder and corruption hanging over him.
Although Zuma is obliged to consider Cele’s representations, senior police sources say plans are already under way to replace both Mkhwanazi and Cele.
The frontrunner is said to be another KwaZulu-Natal stalwart, Nathi Nhleko (see “Why Nhleko is police chief frontrunner”)
Former chief whip
Nhleko is a former ANC chief whip who found himself in the political wilderness during the Thabo Mbeki presidency, reportedly because of his closeness to Zuma.
But a swift transition to the leadership of the SAPS may be stymied by Cele’s intended high court action.
Although government advisers believe Cele’s legal prospects are poor, the inquiry report does contain some evidence and inferences that might open the door for a challenge.
The board was asked to consider “whether the national commissioner acted corruptly or dishonestly or with undeclared conflict of interest”.
Although the board found the evidence fell short of proving that Cele acted corruptly, it ruled that Cele was “dishonest in denying knowing Shabangu and having had dealings with him”.
“The national commissioner’s resolve to ensure, at all costs, that the SAPS was going to rent buildings … linked to Shabangu, at demonstrably exorbitant rates, when he clearly knew Shabangu … indicates that he acted with an undeclared conflict of interest.”
The board’s finding that Cele was dishonest is based on its acceptance of the evidence of Hamilton Hlela, the former deputy national commissioner in charge of procurement and the man who has emerged as Cele’s nemesis in the leasing saga.
Key to Hlela’s evidence was his testimony that in March 2010 Cele called him back to a function in Boksburg after he had already left to return to Pretoria.
According to Hlela, Cele wanted to move out of the old Wachthuis police headquarters in Pretoria and Cele told him to expect a call from someone about a building available for occupation.
On the same day, Hlela said, Shabangu contacted him.
In his evidence, Cele confirmed that he had discussed accommodation with Hlela but emphatically denied he had said anything about anyone contacting Hlela about it.
In their argument to the inquiry, Cele’s lawyers pointed out that Hlela’s claim that he was instructed by Cele to expect a phone call surfaced for the first time in his statement to the board inquiry - it had not been mentioned during the public protector’s earlier investigation.
They also suggested that Hlela had a motive to implicate Cele because the commissioner had called in the Special Investigating Unit to probe the procurement division.
Shabangu refused to give evidence at the inquiry.
Cele testified that he met Shabangu for the first time in July 2010, more than three months after the conversation with Hlela.
But the report found there was “no reason to doubt” Hlela’s evidence.
It noted: “This is corroborated by the fact that, on the same afternoon, Shabangu, a person completely unknown to Hlela, telephoned him.”
The report argues that Cele’s alleged dishonesty can only have been motivated by a secret conflict of interest.
“The most plausible and reasonable inference to be drawn from the set of facts is that the national commissioner knew Shabangu and that he gave him Hlela’s contact numbers. He consequently thus had an interest in Shabangu securing the lease.”
The public protector in her report found no evidence of any improper relationship with Shabangu and it is expected that Cele’s lawyers will argue that the board made errors of fact and law in coming to these conclusions.
Even if Cele succeeds in rebutting the findings of dishonesty and a conflict of interest, there seems less chance of countering findings related to mismanagement of the procurement process.
The report concludes: “The evidence established that the national commissioner, as the accounting officer of the SAPS, grossly misconducted himself with regard to the procurement of the Sanlam Middestad and the Transnet buildings …
“The evidence demonstrated that the national commissioner favoured the buildings owned by Shabangu and that he, together with Shabangu, pushed for the entire buildings in both Pretoria and Durban to be leased by the SAPS, even when the needs analysis showed that a lesser amount of lettable space was required.”
The board treated Cele’s claim that he relied on the advice of his subordinates as an aggravating factor.
“The insistence of the national commissioner on his innocence in this regard demonstrates palpably that he fails to appreciate the nature and importance of the responsibilities which attach to his position.”
‘No critical assessment’
Vuyo Mkhize, a spokesperson for Cele, said: “The board appears to have accepted the evidence of Hlela without any critical assessment …
“Hlela made concessions during his testimony on how he, personally, initiated the procurement process; how he met Mr Shabangu and arranged a presentation on his own; how he approached the acting director general of DPW [department of public works] to motivate a single-supplier procurement process … all of which were done without the knowledge of General Cele …
“Surprisingly, the board attributes these and other violations of the supply chain management of SAPS to General Cele, without explaining the basis for such a conclusion.
“This report is nothing but a crude stitch-up job designed to mislead President Zuma into believing that there is justifiable cause to rob SA of the services of the best police commissioner the country has ever had,” Mkhize said.
“General Cele is busy finalising an application to the high court for a review of this report.”
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