Has Mpshe saved the Scorpions?

A desperate court action to save the Scorpions received a major boost this week when the acting prosecutions boss, Mokotedi Mpshe, submitted a last-minute affidavit that laid bare government’s dishonesty in dealing with the matter.

Businessman Bob Glenister, with five opposition parties acting as friends of the court, asked the Pretoria High Court this week for an urgent interdict to stop government from implementing legislation disbanding the Scorpions. Judge Willem van der Merwe reserved judgement on Wednesday. His decision is expected to be delivered next week.

Glenister’s case was originally considered a shot in the dark by legal observers, but Mpshe’s intervention appears to have immensely bolstered the argument that the process of closing down the Scorpions was illegal. Mpshe’s affidavit also says disbanding the elite unit could cause the collapse of the 546 cases under investigation by the Scorpions and ‘bring the criminal justice system into disrepute”.

Mpshe was appointed by President Thabo Mbeki in September last year after the controversial suspension of national director of public prosecutions Vusi Pikoli. His affidavit was submitted one working day before Glenister’s case was heard.

The acting prosecutions head is a respondent in Glenister’s case, but is not opposing it. Mpshe’s affidavit states that he and Scorpions boss Leonard McCarthy were advised that it was ‘incumbent” upon them ‘as functionaries of organs of state to place relevant facts before the court in order to assist the court in reaching a just decision”.

It is these ‘relevant facts” that contradict crucial parts of the government’s case and strongly support Glenister’s argument that the Scorpions will self-destruct if moves to disband the unit are not stopped urgently.

Mpshe’s affidavit says that government produced three draft Bills in the four months that preceded the publication of the General Law Amendment Bill (Glab), which establishes the Directorate of Priority Crime Investigations (DPCI) to replace the Scorpions. The Bill brings together Scorpions and SAPS members, but does away with the Scorpions’ unique model of prosecutors, investigators and analysts working together.

The revelation about the three draft Bills drew a strong response this week from Glenister’s legal team and appeared to rock even the normally reserved Judge Van der Merwe.

On April 29 justice director general Menzi Simelane gave an answering affidavit to the Glenister motion, in which he implied that legislation on the Scorpions was not imminent: ‘Until the indeterminate time that Cabinet may take a decision to approve the initiation of legislation regarding the DSO [Directorate of Special Operations, the Scorpions], if at all, the matters that the applicant complains of remain abstract, academic, speculative and/or hypothetical.” On April 30 Cabinet approved the Glab.

Glenister’s counsel, David Unterhalter, told the court this showed dishonesty by the government: ‘For four months, immediately following Polokwane [the ANC national conference], discussions about draft Bills have been ongoing. Yet, the respondent’s [Simelane’s] affidavit says there is naught for you to worry about.”

The judge remarked that a lot of advocates would want to cross-examine Simelane about this. ‘It sounds incredible to me that the man [Simelane] on April 29 didn’t know about something that was happening on the 30th, specifically because draft Bills were thrown around since January!” Government’s counsel, Tshepo Sibeko, responded that Simelane was not the minister and could not be expected to speculate about what Cabinet would do.

Mpshe’s affidavit reveals that 26 Scorpions have resigned since January this year and that a further 47 members could be lost in the short term. Government contends these losses are not unusually high for the 500-member unit.

Van der Merwe appeared receptive to Glenister’s counsel’s arguments. He twice expressed disbelief at Simelane’s answering affidavit on behalf of Justice and Constitutional Development Minister Brigitte Mabandla and Safety and Security Minister Charles Nqakula, who oppose the application.

If Glenister is successful, Mabandla and Nqakula will be stopped from implementing the legislation to do away with the Scorpions. This will be a huge blow to Cabinet, which has rushed the Bill in the face of public opposition and against the advice of the Khampepe Commission that advised the Scorpions should stay in the National Prosecuting Authority.

It will also infuriate the ANC, which resolved during its December national conference in Polokwane that the Scorpions must be history by June.

This week Unterhalter argued that it was exactly because of this ‘perversion of the executive process” that the process of disbanding the Scorpions should be declared unlawful.

‘This is not being done to create a better-oiled machine to fight crime, but to carry out the mandate of the ANC, who did not like the scrutiny of this institution [the Scorpions],” Unterhalter said. He said the whole process was unlawful.

Government maintains that the timing of the Bill was coincidental and had nothing to do with the ANC’s resolution.

On the need for urgency, Unterhalter and the advocate for the opposition parties, Michael Osborne, argued that the time to save the Scorpions is now or never. ‘The institution is unravelling before our very eyes as a result of an executive action. Either there is intervention to put a stop to the process — or there are no Scorpions anymore and the consequences are grave,” Unterhalter said.

On the issue of jurisdiction, Van der Merwe said that ‘under normal circumstances” a court would be careful not to ‘overstep the line” of the separation of powers. ‘But there comes a moment when a court will say: ‘Now I do have the jurisdiction to do something.’”

That time is now, Unterhalter argued. ‘The DSO has one chance and that chance is before this court. If M’Lord puts an end to the process [of disbandment] by way of interdict, the prospect is that cooler heads will prevail and the unravelling will end.

‘If the matter is left for Parliament to deal with — that will be an interesting exercise, but simply too late.”

Charges against two Scorpions dropped

All charges of defeating the ends of justice against two Scorpions investigators, caught up in the saga concerning allegations that the City of Cape Town illegally commissioned surveillance of controversial councillor Badih Chaaban have been dropped, writes Pearlie Joubert.

Eight months ago Deon Velthuysen and Wynand Koekemoer were arrested by police superintendent Piet Viljoen of the Organised Crime Unit over their efforts to keep a National Intellgence Agency (NIA) agent’s identity from being revealed in an open court.

The NIA agent, Phillip du Toit, is the man at the centre of the ‘Spygate” saga. He is involved in a complex set of overlapping criminal cases. Some of these arose from his role as a NIA informant helping to crack abalone and drug-smuggling rings, while others relate to his role in investigating Chaaban’s alleged efforts to bribe and intimidate councillors into crossing the floor to the National People’s Party.

The dropping of the charges against the two Scorpions is a fresh blow to the credibility of Viljoen. He is already under attack from Cape Town mayor Helen Zille over what she sees as his biased role in investigating the spy allegations and providing evidence to Western Cape Premier Ebrahim Rasool’s Erasmus Commission of Inquiry into the affair.

Viljoen’s Organised Crime Unit arrested Du Toit following an alleged hijacking and in the process discovered audio recordings from the Chaaban investigation, which triggered the ‘Spygate” revelations.

Velthuysen and Koekemoer made inquiries with the prosecutor about the charges against Du Toit. It is understood that they were trying to protect his identity as an informant. Koekemoer’s counsel, William King, said this week: ‘There was never a solid case against them.”