Staff smell a rat in NPA rotation
Concerned National Prosecuting Authority (NPA) legal staff believe the unexpected removal of advocate Simphiwe Mlotshwa as KwaZulu-Natal acting prosecutions head could pave the way for "political interference" in the high-profile fraud and corruption case involving several elected ANC officials and Uruguayan businessperson Gaston Savoi.
By removing Mlotshwa from the position, they fear it is only a matter of time before criminal charges against ANC KwaZulu-Natal political figures Mike Mabuyakhulu, the province's economic development MEC, and KwaZulu-Natal legislature speaker Peggy Nkonyeni are withdrawn. Mlotshwa has been replaced by advocate Moipone Noko-Mashilo, who some senior NPA officials claim is too junior for the job.
The Mail & Guardian was reliably informed by a number of sources that Mlotshwa had not bowed to pressure to withdraw charges against Mabuyakhulu and Nkonyeni. The sources cannot be named for fear of getting fired, but they told the M&G they could not stand by and watch the case being sabotaged.
"We respect Mlotshwa absolutely," said a KwaZulu-Natal advocate who requested anonymity. "The only reason they went out to get somebody else was because he would not withdraw the charges against Mabuyakhulu and Nkonyeni. We want to know what agreements Noko-Mashilo has reached on the case."
Noko-Mashilo declined to comment and would not say whether she was considering withdrawing the charges against Mabuyakhulu and Nkonyeni.
An internal NPA memo sent out this week said Mlotshwa had executed his mandate "exceptionally well, hence his concomitant appointment to a higher position within the same director of public prosecutions office", indicating that he had been "promoted" 10 days prior to his removal.
NPA sources said Mlotshwa's promotion was to the rank of senior, instead of junior, deputy director of public prosecutions. He had applied for the post last year, they said, but insisted he was unaware that he was being removed from his acting post until the last minute. They alleged that Mlotshwa had been preparing to do Noko-Mashilo's performance assessment in her tax office when he learned about her promotion.
Earlier this month the M&G revealed allegations of interference by advocate Lawrence Mrwebi, the head of the specialised commercial crimes unit, in the case involving Savoi. Documents seen by the M&G showed there was a serious effort by the NPA, spearheaded by Mrwebi, to have the charges withdrawn against Mabuyakhulu and Nkonyeni.
The case throws into the spotlight the critical issue of sources of funding for political parties, which are still not publicly declared in South Africa. At its core is the issue of whether Savoi paid "bribes" to politicians and government officials to secure contracts, or whether he was asked to make "donations" to the ANC, as his legal team asserts.
The state claims that Savoi, through his company Intaka Holdings, allegedly paid sweeteners to secure contracts to provide water-purification systems and oxygen machines to the health and local government departments at hugely inflated prices.
Matters came to a head when Mlotshwa was removed on the day a pretrial session was held behind closed doors in the Pietermaritzburg High Court. Some see the move as part of a concerted drive to have the charges against Mabuyakhulu and Nkonyeni withdrawn amid opposing claims of a political conspiracy against them as the ANC leadership battle heats up. Upset NPA staff assume Mabuyakhulu and Nkonyeni are receiving political support because they are believed to be backing President Jacob Zuma for a second term in office.
Zuma's favourite lawyer in his long-running legal battles, Kemp J Kemp, is part of the defence team representing Savoi. The M&G was informed that, based on Kemp's and other legal opinion, Savoi's legal team will request at the next pretrial meeting in October that the racketeering charges against him be declared "unconstitutional".
Savoi's attorney, George van Niekerk, said the constitutionality challenge to the racketeering charges in the indictment would be based on an offence created in section 2 (1) of the Prevention of Organised Crime Act 121 of 1998.
"Our concern is that the section is void for vagueness," said Van Niekerk. "We say it is not possible for an accused to ascertain from the wide wording of the Act exactly what the offence is for which the accused is charged. Hence it is unconstitutional."
If trial judge Ron McLaren decides to allow it and grants an order, some legal figures believe it could assist the state in withdrawing the charges against Mabuyakhulu and Nkonyeni, who are also accused of racketeering.
Dumisani Xaba, the Pieter-maritzburg attorney representing Mabuyakhulu, confirmed he had received no indication from the state that the charges against his client would be withdrawn.
Nkonyeni was until recently represented by Durban attorney Mvuseni Ngubane, who allegedly committed suicide in May. Nkonyeni could not be reached for comment.
Although NPA staff say the case against Mabuyakhulu and Nkonyeni is solid, lawyers representing some of the accused allege the charges are "flimsy". The events in question took place while KwaZulu-Natal Premier Zweli Mkhize was MEC for economic development. Although state officials involved in the case say they believe Mkhize might have a case to answer, he has vigorously denied being implicated and has not been charged.
The NPA's claim that Mlotshwa's removal complied with public service policy not to keep acting appointees in their post for longer than a year was laughed off by those close to him. They said he had already been acting in the post for two years. Mlotshwa declined to comment.
Mabuyakhulu and Nkonyeni were arrested in August last year, almost a year after most of the other 21 accused were arrested. Some close to the case say this was because of political interference, but others believe the state did not have enough evidence against them. - Additional reporting by Sam Sole
Mlotshwa 'promoted', not axed
The trial dubbed the "Amigos" case, because of the friendly correspondence between Uruguyan businessperson Gaston Savoi and South African government officials, has been beset by accusations of meddling.
But the spokesperson for the National Prosecuting Authority, Mthunzi Mhaga, said there was nothing untoward about the sudden removal of the acting director of public prosecutions in KwaZulu-Natal, Simphiwe Mlotshwa.
"No charges have been withdrawn against any of the accused in the Intaka case, including the Northern Cape leg of the case," he said. "Advocate Mlotshwa was not 'axed' - his acting appointment was never permanent.
"It has been common practice in the past to rotate the director of public prosecutions acting -appointees.
"Insinuation that the new acting appointment is linked to the Intaka case is nonsensical because he is still part of the prosecution team in the Intaka case and remains a senior member of staff in that office." - Glynnis Underhill