Cops bugged former Scorpions boss Leonard McCarthy during a controversial South African Police Service (SAPS) investigation of Scorpions Gauteng head Gerrie Nel, the prosecutor in the Jackie Selebi case.
This evidence emerged in an extraordinary affidavit by Gauteng deputy provincial commissioner Richard Mdluli, who led the Nel investigation.
A police task force arrested Nel on January 8 last year, at the height of the battle over the Scorpions’ attempts to charge Selebi.
The case against Nel related to allegations that he interfered in the prosecution of Cornwell Tshavungwa, the former Scorpion convicted of a cover-up during his own investigation of corruption in Mpumulanga.
Tshavungwa, who worked closely with Nel, is appealing against his conviction.
Nel was released and charges were withdrawn, but Mdluli alleges that there was a conspiracy at the National Prosecuting Authority (NPA) to protect Nel and frustrate the police investigation.
As evidence, Mdluli cites a transcript of an official interception of a 13-minute phone call McCarthy made to another top Scorpions on October 29 2007.
Mdluli compiled his affidavit in support of a Labour Court challenge by suspended Scorpions prosecutor advocate Nomgcobo Jiba.
She, in turn, is accused by the NPA of being part of a conspiracy — involving high officials in the police, Justice Department and the presidency — to arrest Nel at any cost, presumably in a bid to derail Selebi’s arrest.
Jiba was suspended on November 27 2007 after evidence emerged that she helped the police in various attempts to secure an arrest warrant for Nel.
She has approached the Labour Court to have her NPA disciplinary hearing set aside.
In support of her application Mdluli signed an affidavit on January 28 this year in which he makes a number of allegations against the NPA and McCarthy, who now works for the World Bank.
Police commissioner Mdluli claims:
- Police obtained information suggesting Nel lied under oath when testifying in the Tshavungwa case and tried to influence witnesses;
- The investigators approached the acting head of the NPA’s integrity management unit, who referred the police to Jiba;
- Senior NPA officials tried to ”frustrate and obstruct our investigations”;
- Evidence supporting this claim was obtained during the interception of McCarthy’s phone call; and
- McCarthy improperly suggested in the phone call that Nel be alerted about the fact and details of the police investigation.
He quotes McCarthy saying in the bugged phone conversation: ”We will not formally tell Gerrie about this. I do think though at your level you should meet with Mzinyathi [the head of prosecutions] so he can brief you and then you must decide what it is you can advise Gerrie about without, one, upsetting him aimlessly and, two, you yourself being seen to be defeating the ends of justice —”
However, the full transcript of McCarthy’s conversation — and NPA documents contained in suspended prosecutor Jiba’s court papers — support a counter-allegation that there was a campaign to nail Nel.
In early January last year acting NPA boss Mokotedi Mpshe wrote to justice director general Menzi Simelane: ”According to information received by the NPA — it seems as if Adv Jiba and other members of the [Scorpions] together with members of the SAPS, the Department of Justice — and the office of the presidency — in a clandestine manner did all in their power to obtain a warrant of arrest for Adv Gerrie Nel.”
Key NPA evidence is the affidavit of Jiba’s colleague and friend, advocate Vernon Nemaorani.
Nemaorani says Jiba blamed Nel for instigating the investigation of her husband for dipping into his attorney firm’s trust fund, and that she demonstrated a ”passionate” desire to make Nel pay.
Nemaorani states: ”[Up to] the beginning of September 2007, Adv Jiba consistently talked about the fact that ‘they’ are working and something will happen soon — she mentioned that it relates to Adv Nel.
”She mentioned meetings that were being held with people from the presidency, the Department of Justice and members of the SAPS. According to her meetings were even held— late at night.
”She spoke of a meeting which was also attended by the Regional Head of KZN, Adv L Mrwebi. She said Adv Mrwebi was flown overnight by a police helicopter and was flown back after that meeting. She did not mention the names of other people who attended the meeting, but said they are the highest ranking SAPS members.”
Mrwebi is the former Scorpions head in KwaZulu-Natal who signed a statement on September 27 2007 criticising a meeting called by McCarthy to discuss how to counter the proposed disbanding of the Scorpions.
The statement became a central plank in Selebi’s court bid last year to stop the Scorpions from charging him.
Nemaorani also tells how Jiba involved him in her campaign — arranging for him to meet Commissioner Mdluli and accompany her and the investigating officers in an initial, failed, attempt to secure an arrest warrant for Nel.