On Friday, the Mokgoro inquiry heard new revelations about what evidence leader Nazreen Bawa SC called “an obvious attempt to influence a decision to prosecute” — through representations and a secret visit paid to the National Prosecuting Authority (NPA) by senior crime intelligence officials.
Bawa was cross-examining suspended head of the Specialised Commercial Crime Unit (SCCU) Lawrence Mrwebi about his decision to withdraw corruption and fraud charges against the former head of crime intelligence Richard Mdluli.
The inquiry — chaired by retired judge Yvonne Mokgoro — is looking into whether Mrwebi and deputy national NPA head Nomgcobo Jiba are fit for office after the two were roundly criticised in a number of politically sensitive court judgments.
The Mdluli prosecution is one of the matters for which Mrwebi has been criticised.
His decision to withdraw was set aside by the Supreme Court of Appeal as unlawful, and there have also been allegations that he and Jiba were trying to protect Mdluli.
The inquiry has heard how, when Glynnis Breytenbach, then head of the SCCU’s Pretoria office, implored Jiba to review Mrwebi’s decision, Mrwebi wrote a letter to her, Pretoria director of public prosecutions Sibongile Mzinyathi and fellow prosecutor, Jan Ferreira.
In this letter — dated April 26 2012 — Mrwebi cautioned about the NPA being abused, and said he had been “privy to other classified, confidential and high-level discussions”. He was concerned that their actions may justifiably be interpreted as a “serious abuse of the legal process”.
Those who testified before Mrwebi and were asked about this incident said they did not know which discussions he was referring to, saying they knew nothing about it.
During Mrwebi’s cross-examination on Friday, the details of the letter and the visit emerged.
Bawa submitted a “presentation” on behalf of Major Generals Moodley and Lazarus, Colonels Vanker, Barnard, Singh and Lieutenant-Colonel Shaik — all from crime intelligence. Barnard was Mdluli’s co-accused and Lazarus was a senior financial officer in Crime Intelligence who has since been fired and “subjected to a number of processes,” said Bawa.
Mrwebi said he had also been visited — some time in April 2012 — by two lawyers and two other individuals. He had already revealed the representations during a disciplinary process against Breytenbach in 2013 but would not name who had come to see him.
On Friday, he revealed that one of them was Major General Lazarus.
The presentation said that the “continued investigation poses serious legal implications,” which could place the country “at potential embarrassment at an international level”.
No further details were given on the potential embarrassment but it said the use of crime intelligence’s secret fund was governed by intelligence laws and not the ones that governed the police; and that all “expenses undertaken from the secret services account is done so in accordance with the approval of the President in terms of the Secret Service Act”.
“These functions can therefore never be made known,” said the presentation.
The spending by Mdluli being investigated had been reviewed and audited by the Auditor-General (AG) and were confidentially tabled before the joint standing committee on intelligence and there were “no negative resolutions,” said the presentation.
Instead, the continued investigation of Mdluli was in bad faith and the “uncontrolled, uninformed investigation” was posing a danger that “will be divulged to the reader herof in person”.
In his letter on the 26th to Mzinyathi, Breytenbach and Ferreira, Mrwebi repeated that the AG had given a clean bill to the transactions.
Bawa suggested that the contents of Mrwebi’s letter of April 26 was “informed by the information provided for in that letter”. Mrwebi said he got information from various sources including this one, some was provided verbally.
Bawa said: “ But it does become dangerous when you start taking decisions based on information that is provided to you without any form of verification”.
Mrwebi replied that he had verified the information when he went to see the national police commissioner. In any event, the decision that had been taken was not to shut down the prosecution, but rather that this matter must be “properly investigated”.
Bawa then asked how Mrwebi had said, in his letter to Mzinyathi, Breytenbach and Ferreira, that it was “a known fact” that the Auditor General had looked at the Mdluli transactions and found nothing untoward. She suggested that this known fact Mrwebi could only have gotten from his visitors.
“Did it not concern you that the very people who could have been the subject of the investigations with crime intelligence were coming to you secretly to tell you they must back off the investigation?” Bawa asked.
Mrwebi responded: “I did not give anyone instructions they must back off the investigation, the investigation was going to be done by the police, nobody was going to back off”.
The revelations about the secret discussions were not the only bomb dropped on Friday. Earlier it had emerged that the legal adviser to the Inspector-General of Intelligence, Jayashree Govender, had accused Mrwebi of “a blatant distortion of the truth”.
Govender put in an affidavit contesting evidence Mrwebi had given about a meeting he had with her on March 20 2012, concerning the mandate of the Inspector-General of Intelligence.
This has been a central question in the Mokgoro inquiry because when the corruption charges were dropped against Mdluli, witnesses have told the inquiry that the reason initially given by Mrwebi was that the matter fell within the exclusive remit of the IG.
Mrwebi on the other hand has been adamant that his reason for withdrawing the charges was because there was not enough evidence to link Mdluli to the crime. He said that, as far as the IG was concerned, his concern was that it would have been easier for IG to investigate as they could access classified documents.
However, after Mrwebi made the decision Breytenbach and Ferreria had gone to Govender, who had disagreed and said that this investigation was outside of the IG’s mandate.
Eventually an official request was put in by the police and the IG wrote a letter to former Hawks head Anwa Dramat saying as much.
Before Mrwebi had received the letter, he told the inquiry, he had gone to see Govender — on March 20 2012. He said she did not disclose to me that she has already returned a letter to the NPA a day before his visit.
He said the two had “sat and discussed the matter; and I told her my position with
regard to the matter, more importantly, that we still do not have evidence
in the matter as far as Mdluli is concerned, that links him to the crime. I took her through the matter intensively as well.”
He said he had told dher that it would be better and easier for the IG to investigate “because in terms of your law you are best suited in terms of access to documents … The important thing, as I read your legislation, you have no restrictions. You can kick the door, you can – you do not need a warrant”.
Mrwebi said that Govender had responded that, in line with international best practice, they wanted to move away from “anything to do with investigations. We want to be focused merely on oversight … She even said, we are in the process of amending the legislation to provide exactly for that.”
But in her affidavit, Govender disputed Mrwebi’s version of events. “At no stage did he take me through or discuss the evidence against General Mdluli, intensively or otherwise. This is a blatant distortion of the truth”.
She also “vehemently” denied that she said the legislation governing the office of the inspector general of intelligence was in the process of being amended.
When asked about this, Mrwebi disputed her version and said they did discuss the merits of the Mdluli case and she did refer to international best practice.
Then, just before the end of Mrwebi’s cross-examination, Bawa told the inquiry that a judgment had been submitted which made findings on Mrwebi.
Mrwebi said that if this was the judgment he had been given the night before, he would object because he had serious concerns about it. He said he wanted to see the transcript of the Magistrate Court proceedings and the recordings because he didn’t remember saying what judgment says he said. He wa suspicious that transcription may have been distorted because he “knows the history of the matter”.
It was decided that he would first be given an opportunity to look at the transcript and that the evidence leaders would try and procure the recordings.
However, the Mail & Guardian has confirmed that the judgment in question was an an appeal to the Gauteng high court by former Scorpion Malala Geophrey Ledwaba against a conviction of fraud and theft related to the Scorpion’s confidential fund. His appeal was successful.
Mrwebi was one of the witnesses against Ledwaba. But the court said Mrwebi’s evidence “was filled with contradictions and inconsistencies, and was premised on an attack of the character of the appellant.” Judge Zeenat Carelse also said: It was put to Mrwebi in cross examination that he “lied” and he conceded that he had “lied”.