Hours before President Jacob Zuma announced an inquiry into prosecutions chief Mxolisi Nxasana’s fitness to hold office, several residences of National Prosecuting Authority (NPA) employees were raided by the Hawks in what is believed to be a frantic search for the controversial Zuma spy tapes.
The Hawks on Thursday confirmed that “we raided some houses”.
The employees targeted are perceived to be close to Nxasana’s bête noire – his deputy and former acting national director of public prosecutions (NDPP), Nomgcobo Jiba.
One NPA staff member’s office in Pretoria was apparently broken into and searched without any explanation. He was apparently the driver of Jiba and Nxasana’s predecessor, Vusi Pikoli.
A dozen Hawks officers were deployed during the dawn raids last Friday.
One of the Hawks officers involved in the raids, a Colonel Nomvalo, refused to divulge details of the searches when contacted by the Mail & Guardian.
No one – from the NPA, the Hawks or the South African Police Service – would give a reason for the raids, although there were private confirmations that they were triggered by the factional fights in the NPA and the desperate hunt for the tapes.
The tapes are crucial to whether the decision to drop corruption charges against President Jacob Zuma should be set aside. In 2009, the then national director of public prosecutions, Moketedi Mpshe, stopped the prosecution of Zuma, citing as his reason that the secret recordings revealed that senior NPA leaders were conspiring to charge Zuma.
NPA chief Mxolisi Nxasana. (Paul Botes, M&G)
The Democratic Alliance’s legal attempt to retrieve the recordings ended with the Supreme Court of Appeal ruling that the NDPP should produce the records on which Mpshe based his decision to drop the case.
Nxasana would have been a central figure in deciding whether to hand the tapes over to the DA.
Jiba, when she was acting NPA head, refused to give the tapes to the DA. She is now challenging the matter.
The M&G understands that the spy tapes were one of Nxasana’s first demands when he assumed office. Jiba apparently refused on the grounds that the new prosecutions chief didn’t have security clearance. This, according to the NPA sources, raised alarms about Nxasana’s intention regarding the tapes.
Last Saturday, just 16 hours after the raids, the president announced an inquiry to investigate Nxasana’s fitness to hold office. This came after state security refused to grant him security clearance for failing to disclose, among other things, a murder case in which he was acquitted almost three decades ago.
Although the M&G could not independently link the spy tapes to the raids, a source in the security institution with intimate knowledge of the raids said the searches were a “panicky” attempt by Nxasana to get the recordings before Zuma suspended him.
The search warrants for the raids, which were signed off by the Pretoria magistrate’s court, were vaguely drafted, to empower the Hawks to seize the documents. As quoted verbatim, the warrants state:
- Any document that would hold reference to the business of the NPA;
- Any documentation that would hold reference to the business of other government departments indicating business with the NPA;
- Any documents, indicating that they hold reference to any court applications, police case files, or other law enforcement agencies who would have an expectation that the documents, if at [the] private residence, would never have been disclosed to unknown parties such as the individuals, the witness has described in his affidavit, took receipt of;
- Any bags, files or envelopes that would fit the description of that what was used by the witness to conceal the documents when removed from the NPA building; and
- Any storage device, such as computer hard drives, compact discs, memory sticks, that has the capacity to store data which might be the property of the NPA.
‘Gross abuse of state resources’
The official in the security institution fingered Nxasana for the raids, accusing him of abusing state resources to save his career. The official alleged this was the “gross abuse of state resources” in the battle for the control of the NPA.
But Nxasana has denied any knowledge of Friday’s raids and would not comment on any connection between it and the hasty commission of inquiry into his fitness to hold office.
He claimed he was informed of the commission on the Friday at about 10pm, even though he told the Sunday Times that he only heard of the president’s decision on Saturday.
“I don’t know,” he said when asked whether the two events were possibly linked. “I know that I was advised about the inquiry on Friday evening. I acknowledged receipt of it at about 10pm.”
Nxasana insisted that he was not aware of the raids at all.
“I took leave,” he said. “I was last at work on Friday.”
When the M&G pointed out that the raids took place on Friday, he answered: “By the time I left, I was not aware of it.”
A government official said police commissioner Riah Phiyega was not aware of the raids and was apparently furious about the incident, and demanded answers from the Hawks.
The M&G understands that she had ordered a major investigation.
But police spokesperson Solomon Makgale said: “This is a matter being investigated by the Hawks. My understanding is that a response to your questions has been forwarded to you. There is nothing we wish to add beyond the response given.”
Hawks head Anwa Dramat referred all questions to Hawks spokesperson Paul Ramaloko.
“We are confirming we raided some houses. We obviously won’t say whose houses since individuals are not formally charged,” Ramaloko said.
Moketedi Mpshe let Zuma off the hook. (Lisa Skinner)
The Hawks said it obtained the search warrants for the Friday’s raids from the NPA.
“It’s a bit of a challenge for me,” he said. “Once you identify an entity it’s like you’re identifying individuals.”
Although the M&G source said the search warrant presented at the raid looked dubious, Ramaloko insisted that it was a legitimate search warrant.
“We had a valid search warrant,” he said. “Procedurally, you will understand that, when you have a valid search warrant, it means there is an ongoing investigation and that the NPA was convinced with our facts, and we can go search and see what we can get.
“We take the state affidavit to the NPA for a decision, then you would apply for a search warrant and then, if NPA believes there [are] valid reasons for the search, you would organise a search. We can present the person with a copy, and they can go and go validate it.”
NPA spokesperson Nathi Mncube said he had no knowledge of the raid, but confirmed that the search warrant would have to be signed off by a senior prosecutor from the NPA, based at the magistrate’s court closest to the search location. The local magistrate would then finally approve the warrant.
“As a prosecutor, you have to read and satisfy yourself that there is some kind of evidence,” Mncube said. “The magistrate is the ultimate arbiter who decides whether to authorise it or not.”
The NPA refused to comment on who signed off on the raid. Mncube referred the queries to Ramaloko, who in turn referred it back to the NPA.
Reluctant to answer
NPA chief executive Karen van Rensburg was reluctant to answer questions, insisting she had nothing to do with the “prosecutions”.
Mncube defended the lack of knowledge of the raid within the NPA’s higher echelons, saying that, if an NPA employee was searched, it would be an individual matter that had nothing to do with his or her employer.
“Remember that, like any other investigation, the NPA doesn’t get involved. If you committed a crime, you are treated like any other Tom, Dick or Harry. The bosses may not know themselves.”
The NPA prosecutor, L Naidoo, who signed off the search warrant, based at the court, would not discuss the matter with the M&G, stating the need to observe protocol.
Ironically, Jiba once signed such a warrant to arrest top prosecutor Gerrie Nel in 2008, apparently blaming Nel for prosecuting her attorney husband for the theft of trust funds.
Jiba was subsequently suspended but made a comeback during Zuma’s administration. Jiba couldn’t be reached for comment. – Additional reporting by Moshoeshoe Monare and Angela Quintal
Possible stand-in is controversial
The head of prosecutions in KwaZulu-Natal, Moipone Noko, has been tipped as a potential candidate to stand in for the national director of public prosecutions, Mxolisi Nxasana, when he faces a commission of inquiry about his fitness to hold office.
Nxasana’s backers in the National Prosecuting Authority (NPA) believe he is being targeted because he has been too independent, unlike Noko, who has been accused of dropping high-profile cases for political reasons.
Also, Noko’s office was recently investigated after complaints by her staff about irregularities, racism, victimisation and an abuse of power.
A report of the findings has now been released in the NPA after Nxasana put pressure on Noko to make the report available to staff.
However, some legal staff are dissatisfied with the findings and told the M&G it was a whitewash. They said they would lodge a complaint about the investigation with the public protector.
A Durban attorney, Comfort Ngidi, who conducted the investigation for the NPA, led the charge against the public protector’s Nkandla report earlier this year.
NPA staff told the M&G in April that they were “appalled” after they learnt that he and a group of other lawyers, some connected to the ANC and President Jacob Zuma, were fighting to have Thuli Madonsela’s Nkandla report reviewed by a court. This had made them question why Ngidi had been picked to do the NPA investigation into Noko’s office.
Now, after studying the report, legal staff are preparing their own complaint about the way the investigation was conducted.
“That diluted report cost R700 000,” a concerned senior staffer said. “Things people testified about have been left out, as well as all allegations against Noko.”
Ngidi and the NPA have denied that the investigation cost that much but another legal figure said there were more serious issues at play. Allegations about Noko’s withdrawal of cases had either been removed or not disclosed in the report.
Pro-Zuma lawyer Comfort Ngidi was chosen to probe a variety of complaints against Moipone Noko’s office. (Kevin Sutherland)
The M&G has seen a copy of it, which revealed that 28 NPA employees attached to the office of the provincial director of public prosecutions were interviewed.
Included were complaints by legal staff that, when bonuses and cases were allocated, they were discriminated against. They claimed Noko had surrounded herself with “whites” who discriminated against them.
One of the staffers suggested that this was because she did not have sufficient experience for the job.
Noko ran the NPA’s tax office in Durban before she was catapulted into the senior position.
Noko was interviewed during the investigation but the details were “either erased or lost” when they were sent to the transcribers, the report stated.
“This, however, could not delay us due to the fact that our team had taken extensive notes from the interview,” it said.
But no details of their notes are in the report.
Noko has been surrounded by controversy since her appointment in an acting capacity by Zuma in 2012. At the time, staff claimed her predecessor, Simphiwe Mlotshwa, was removed because he refused to bow to pressure to withdraw charges against two senior ANC figures in the province relating to the Uruguayan businessperson Gaston Savoi.
Just two weeks after her appointment, Noko dropped the charges against the two, Mike Mabuyakhulu and Peggy Nkonyeni, declining to give reasons for her decision.
Allegedly corrupt tenders
The charges arose from allegedly corrupt tenders awarded to Savoi’s company Intaka for the purchase and hire of water purification plants and oxygen equipment supplied to government hospitals.
Zuma subsequently made Noko’s appointment permanent.
The NPA spokesperson, Nathi Mncube, said that he was unable to comment on whether Noko might act in Nxasana’s post if he is put on special leave or suspended.
Asked about the dissatisfaction over the investigation into Noko’s office, Mncube said: “The investigations regarding that were conducted by an independent labour lawyer and his recommendations were accepted by [the] NPA.”
Noko did not respond to questions sent to her and Ngidi could not be reached for comment. – Glynnis Underhill