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Sam Sole, Stefaans Brümmer22 Jun 2008 00:00
The justice ministry and the National Prosecuting Authority are locked in a battle over the survival of the arms deal investigation.
Justice Minister Brigitte Mabandla is accused of blocking the Scorpions’ fresh investigation into secret commission payments involving British defence company BAE Systems and Fana Hlongwane, a former special adviser to the minister of defence.
Meanwhile German prosecutors this week charged that the Justice Department’s failure to assist had contributed to their dropping their own investigation into the contract by which German company ThyssenKrupp supplied the South African navy with four corvettes.
The Mail & Guardian has established that stonewalling and technical challenges by the ministry and the justice department are threatening the investigation of the aircraft contract awarded to the BAE Systems consortium to supply South Africa with Hawk jet trainers and Gripen fighters.
The M&G revealed last year that the United Kingdom’s Serious Fraud Office (SFO) was investigating more than R1-billion “commissions” paid by BAE in its campaign to win the contract.
These flowed among others to Hlongwane, then defence minister Joe Modise’s special adviser.
The M&G has confirmed that Mabandla is refusing to authorise overseas travel by investigators to meet with the SFO, as well as to follow up leads in other countries, including a Swiss bank account allegedly linked to Hlongwane. Hlongwane has consistently declined to comment on the claims.
The ministry also appears to be challenging the legal basis for a request by the SFO that it and the Scorpions cooperate in parallel investigations of the South African deal, which would allow information sharing and coordination in a complex international probe.
Similar problems emerged with regard to a German request for South African assistance in Dusseldorf prosecutor’s probe into commission payments by Thyssen to secure the South African corvette warship supply contract.
The request, forwarded to the Justice Department last year, revealed German investigators believed the payments had flowed to South African Cabinet members and officials, including former chief of defence procurement Chippy Shaik. Shaik has consistently denied the allegation.
The German request was met with demands from the Justice Department for details and clarifications. Despite a follow-up response from the Dusseldorf prosecutors at the beginning of this year, no action has been taken to act on the request by the South Africans.
The German memorandums have also not been forwarded to the National Prosecuting Authority, even though the Scorpions have had a registered investigation of the corvette contract since 2001.
The M&G understands that the failure to secure any information from South Africa contributed to the decision by German prosecutors—announced this week—to close the ThyssenKrupp investigation (see story below).
In response to questions from the M&G, the NPA denied there had been any interference in the BAE case, but confirming “interaction” with the minister’s office regarding the investigation.
“We have a BAE investigation authorised in February 2008 in terms of Section 28 of the NPA Act. In the ordinary course of carrying out our functions, we interact with the minister’s office where we may be requested to make information available to that office in terms of Section 33 of the NPA Act.”
The section empowers the minister to request information about any investigations or prosecution decisions.
The crisis over the suspension of National Director of Public Prosecutions (NDPP) Vusi Pikoli began with similar queries about the investigation of police commissioner Jackie Selebi.
However, according to the NPA statement, “both the request for information and compliance with such request, do not constitute an interference or disruption with operational functions of the NPA including any of its units”.
Mabandla also denied any interference. In response to questions from the M&G, her spokesperson said: “In the normal course of his duty, the NDPP is required by the NPA Act to keep the minister informed of the activities of the NPA’s
“So the minister did not ‘intervene’; instead in this particular case the acting NDPP wrote to the minister about this matter.”
But the spokesperson confirmed Mabandla had raised queries with acting NDPP Mokotedi Mpshe and has refused to allow investigators from the Directorate of Special Operations (the Scorpions) to follow their leads overseas.
“As the [Directorate of Special Operations] DSO was interacting with a sovereign country, as the political head, the minister wanted to know what processes the DSO were following ...
“It is still not clear if the relevant laws and processes that regulate interaction with other countries were followed and it would therefore not be proper for the minister to authorise foreign trips for DSO operatives when this matter has not been clarified.”
Justice department director general Menzi Simelane confirmed that he had also written to Mpshe to query the BAE investigation, which was prompted by new evidence shared with the NPA by the SFO.“I wrote to Mpshe asking for clarity on the matter,” Similane stated. “I hope [the M&G] are not suggesting that there is interference because there isn’t.”
Similar technical constraints appear to have hampered cooperation between Scorpions investigators and their German counterparts probing the ThyssenKrupp allegations. A source with access to the NPA told the M&G this week that Scorpions investigators had been prevented by the Justice Department, on technical grounds, from exchanging information with the German investigators.
A well-placed, justice-sector source told the M&G, however, that the Scorpions have started their own probe of the ThyssenKrupp allegations, relying on an official approval in 2001 for an investigation into the corvette side of the arms deal.
Cabinet and the department in March denied that South Africa was to blame for the delays. The department said in a statement that it “has done everything possible to ensure that the government can assist the German authorities in its probe”.
The German prosecutors’ statement this week explaining their decision to drop the bribery aspect of the ThyssenKrupp probe, however, gave one reason as that “timely execution [of South Africa’s compliance with the German request] cannot be relied on.”
Read more from Sam Sole
Stefaans is an old hand at investigations. A politics and journalism graduate, he cut his reporting teeth at the Cape Argus in the tumultuous early 1990s; then joined the Mail & Guardian as democracy dawned in April 1994.
For the next 16 years (a late-1990s diversion into television and freelancing apart), the M&G was his journalistic home and launch pad for award-winning investigations focusing on the nexus between politics and money.
Stefaans has co-authored exposés including Oilgate, the Selebi affair, Chancellor House and significant breaks in the arms deal scandal.
Stefaans and Sam Sole co-founded amaBhungane in 2010. He divides his time between the demands of media bureaucracy (which he detests), coaching members of the amaBhungane team, and his first love, digging for dung.
Read more from Stefaans Brümmer
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