The prosecution of the men arrested for a major Pagad-related urban terror attempt in Cape Town was quietly abandoned last year — drawing a veil over suspicions that police lied under oath and bugged conversations illegally.
Western Cape police commissioner Mzwandile Petros was to have been the star witness against four suspects in the November 2000 attempted bombing of the Keg and Swan restaurant in Durbanville. The incident capped a wave of bomb attacks, blamed on People Against Gangsterism and Drugs (Pagad), which had put police under enormous pressure to make arrests. The official account is that Petros, then a ranking police intelligence officer, tailed two suspects as they planted the bomb. But a Mail & Guardian investigation has raised questions about his version of events.
A key player in a surveillance team reporting to Petros was Anwa Dramat, now head of the new directorate for priority crime investigation, or Hawks. Questions about the legality of aspects of the surveillance remain unanswered.
The National Prosecuting Authority (NPA) confirmed that the intended prosecution was dropped last year, but denied there were concerns about Petros’s credibility as a witness. The NPA referred questions about illegal surveillance to the police, who refused to comment other than to say the intended article was ‘factually incorrect and unsubstantiated”.
Terror spree
In response to the bomb attacks on the Western Cape in the late 1990s, police had assembled a task team, combining intelligence, detective and reaction unit members. Petros headed the intelligence component.
In an affidavit contained in the docket Petros states that he received information on the afternoon of November 2 2000 that Faizel Waggie and Shahied Davids had been seen buying fertiliser and fuel — ingredients for a bomb — which they took to an address in Grassy Park.
Petros, Riaan Booysen — a police director who headed the task team’s detectives — and another police director decided the address should be put under surveillance rather than immediately raided.
But there was already a surveillance operation in place, according to other affidavits in the docket, which was disclosed to the defence and seen by the M&G. Two officers said that they were tasked around the end of October to observe Waggie and Davids. They had seen them buying the fertiliser and fuel on November 2.
Petros states that on November 3 at around 5am he received information from ‘a reliable informant that members of Pagad G-Force were moving to Tygervalley with the intention of planting a pipe bomb in Durbanville/Tygervalley vicinity”. He immediately drove towards Tyger Valley on the N1. He spotted the suspects’ car, a Ford Sapphire, and started following it.
Three seconds
Petros states that the Sapphire turned off the N1 towards Durbanville. He had to hold back at an intersection because the traffic lights were red, but he saw how the Sapphire stopped about 200m further on.
Petros states that he saw Naziem Davids, Shahied Davids’s brother, alighting with a container and walking to a nearby street corner where he ‘disappeared for [about] three seconds”. Davids returned to the Sapphire without the container. He later saw that Waggie was the driver.
Petros states that he immediately informed Booysen, his colleague on the Pagad team, of the ‘possible bomb” while he continued following the Sapphire until it was pulled over by uniformed policemen alerted by radio. The bomb, disguised in a flower pot, was found outside the Keg and Swan at the corner where he saw Davids taking the container.
On the face of it, Petros was the perfect witness, as he could personally connect Davids and Waggie to the bomb. But legal sources indicate that Eunice van Wyk, the prosecutor then assigned to urban terror cases, had early queries about Petros’s version.
Was he there?
There are questions that raise doubt as to whether Petros was truly there at the time. For instance:
- Why did Petros state that the 5am tip-off came from a ‘reliable informant” and why did he personally tail the car when a extensive surveillance operation was already in place? This operation, which appears to have been headed by Dramat, included tracking and bugging devices on the Sapphire (see further on in the story).
- After Petros alerted Booysen, the latter searched for the bomb — but in the wrong place. His affidavit says he ‘started searching in rubbish bins” in an area corresponding with where Petros had stopped at the traffic lights and not 200m further on where the bomb was planted.
- Reaction unit members were subsequently told to search along a 500m stretch of road without a clear indication of where to look. An officer found the bomb at 6.50am, 80 to 90 minutes after Petros’s supposedly direct observation.
Petros tried to refute such criticism in his statement, saying that he was ‘very excited” and ‘did not write the restaurant and street names down”.
Preparations for the trial continued and witnesses were summonsed. Petros, by then Western Cape police commissioner, was to be the first witness.
But days before the trial was scheduled to start in October 2003 the reaction unit inspector who ultimately found the bomb, Johannes Badenhorst, recanted his affidavit, legal and investigatory sources say.
Badenhorst’s affidavit states that he started searching at the Keg and Swan after his superior told him to look there on the basis of information received. This, he now said, was untrue — he had searched there on his own initiative, but was subsequently told what to say in his affidavit. The implication, again, was that Petros may not have made a direct observation and that affidavits were adjusted to cover the problems in finding the bomb.
Van Wyk, the prosecutor, raised the alarm and an urgent meeting was called to assess the case. It was attended by police top brass, including Petros and NPA bosses, including then national director Bulelani Ngcuka.
Van Wyk, who has since left the NPA, confirmed that she provisionally withdrew charges ‘on instruction of [Ngcuka]. I did not want to prosecute as I had problems with the credibility of witnesses.”
Bugging
Further questions are raised by the emergence of a police document, seen by the M&G, which recommends police officers involved in the operation receive merit awards totalling R285 000. Officers are commended for ‘live monitoring of Telkom lines”, ‘installation of devices in target vehicle”, ‘monitoring the tracking device”, ‘monitoring the conversation in the vehicle” and ‘coordination and physical surveillance of suspects before the actual arrest”.
In this last category Petros and Dramat were to get R15 000 each — the highest individual amount — and the Police Star for Merit.
What remains unexplained is why none of the results of the electronic surveillance, including potentially damning evidence from the bugging and tracking of the Sapphire, was included in the docket as evidence.
One explanation is that the bugging was unauthorised and therefore illegal — which may explain the emphasis on Petros’s alleged personal observation.
A legal source acquainted with the case said the NPA in the Western Cape had no record of authorisations for the bugging. The prosecuting authority declined to answer questions on the topic, saying: ‘This is a matter for [the police] to answer.”
Responses
But the prosecuting authority said it was ‘satisfied Petros would be a credible witness” and the issue played no role in a subsequent decision, under a new prosecutor, finally to withdraw the case last year.
It blamed the dropping of the case on the unavailability of key witnesses:
- Two alleged accomplices who turned state witness, Yusuf and Fahiema Enous, were assassinated while in witness protection. But this happened before the provisional withdrawal in 2003, when it appears not to have been an obstacle.
- Badenhorst, who found the bomb, was not regarded as reliable as he ‘made a further contradictory statement” and ‘it also appeared that he had a grudge” against the police. He declined to speak to the M&G.
- Booysen ‘had become unable to testify due to illness”.
Booysen is locked in a dispute with the police. Labour court records show that he claims to suffer from post-traumatic stress disorder. The police maintain this is untrue. This police version contradicts the NPA’s assessment that he is unavailable to testify because of ‘illness”.
The Western Cape police refused to answer detailed questions, threatening legal action should the article be published. It said the intended article would be ‘factually incorrect and unsubstantiated” and ‘prejudice the name and reputation” of the police and Petros.
Police headquarters and Dramat failed to respond.
Prime suspects
The collapse of the Keg and Swan case represented a failure to neutralise what appears to have been a key urban terror cell, the members and family of which were linked to a trail of often bloody incidents associated with Pagad.
On November 3 2000 Faizel Waggie and Naziem Davids were arrested shortly after allegedly planting the pipe-bomb in front of the Keg. Later they were joined by Shahied Davids — Naziem’s brother — and Haroon Orrie, who were allegedly involved in planning the attack. Police also arrested Yusuf and Fahiema Enous after a police raid on their home in Grassy Park, where the pipe-bomb was allegedly manufactured.
Orrie and Waggie had previously been arrested in connection with the February 2000 abduction of state witness Ebrahim Gallie, who was scheduled to testify in another Pagad trial. Gallie escaped but the case had to be dropped after he was shot dead in May that year.
Orrie was linked to the Keg bomb by fingerprints on a tube of glue found in the garage of the Enous home. At a bail hearing he denied knowing the Enouses.
The Enouses became state witnesses in the Keg case, but were murdered by Orrie’s brother, Phadiel, on Boxing Day 2000 while under witness protection. Phadiel Orrie was sentenced to two terms of life imprisonment for the murders.
At the time of the Keg incident Waggie was out on bail in another case related to the Lansdowne police station bombing in January 1998.
Waggie, with another Pagad member, Ismail Edwards, was later convicted in the Lansdowne case and sentenced to 30 years imprisonment.
Waggie and Shahied Davids were also convicted in another case for attempting to murder Armien Abrahams and robbing him of his bakkie. Abrahams, who was connected to high-profile gang members, was also later gunned down by unknown assailants.
Waggie is still in jail, but Davids was released in 2005. Davids was arrested again in December 2006, allegedly in possession of three pipe-bombs. Charges against him were withdrawn without explanation in 2007.
In June 2007 a newspaper quoted prosecutor Helene Booysen confirming the Keg case was being reopened. But on March 26 2008 the case was quietly closed once more.