General

On 27 February 2018, FDA sent a letter to SCOPA to highlight the various misleading statements made by various members and witnesses.

Click here to read the letter

27 February 2018

For official attention of:

Mr Nelson Godi

Chairperson of the Standing Committee on Public Accounts

Per email: ngodi@parliament.gov.za

And to:

Standing Committee on Public Accounts secretariat

Mr Ben Kali (Secretary)

Per email: bkali@parliament.gov.za

Ms Theodora Nkabinde (Secretary)

Per email: nnkabinde@parliament.gov.za

 

Honourable Chairperson and members of the SCOPA,

URGENT

___________________________________________________________

SAPS AND SITA SOC LIMITED PROCUREMENT – FALSE OR MISLEADING STATEMENTS MADE BY VARIOUS MEMBERS AND WITNESSES REGARDING WRONGDOING BY FORENSIC DATA ANALYSTS AND OTHERS – UNLAWFUL ACTIONS TAKEN BY VARIOUS PERSONS AND ORGANS OF STATE – REQUEST FOR REMEDIAL ACTION TO BE TAKEN BY SCOPA

___________________________________________________________

 

 

 

Introduction and background

 

  1. This purpose of this representation made on behalf of Forensic Data Analysts (Pty) Ltd is to assist and support SCOPA members in the execution of their duties, when interrogating veracity of statements made by various members and witnesses during SCOPA proceedings, relating to allegations of wrongdoing by FDA and others, and to point out certain irregularities that have transpired during the course of the investigation into the matter by IPID and SITA.
  2. FDA have, after carefully considering the evolution of this matter, concluded that:

 

  • 1. SCOPA have been severely misled or presented with unreliable versions of fact and legal assessments.
  • 2. Misapprehensions of the true state of affairs have induced SCOPA to feel justified in taking a firm and adversarial stance towards FDA, which gave rise to a perceived need to issue a statement to express the committee’s discontentment on the matter, or rather, on the version of the matter presented to SCOPA.
  • 3. SAPS and SITA have subsequently felt compelled to ‘abide by the order of the portfolio committee’, albeit irrational and unlawful.
  • 4. The integrity of representations to SCOPA must be critically evaluated to ensure SCOPA is not being abused to serve illegitimate purposes that could not otherwise be lawfully served. In this vein, FDA is of the firm opinion that information exists which should show that:
    • 4.1. SCOPA may have been misled or presented with inaccuracies in respect of specifically significant aspects of the subject matter, and therefore SCOPA should be assisted in its truth-seeking exercise as part of the oversight function, by providing members with:
      • 4.1.1. questions which should test the integrity of information currently before the committee;
      • 4.1.2. the descriptions of the original sources of relevant evidence that should be referred to and compared to information currently before the committee.
    • 4.2. It was neither in SCOPA’s nor the public interest to purport that a resolution was adopted, instruction issued or order made to immediately and arbitrarily suspend or terminate FDA contracts, without first ensuring it would be rational and lawful to do so, nor was it appropriate to allude to the unwelcome presence of presumably innocent individuals contrary to Constitutional principles.
    • 4.3. Certain individuals and entities must be held to account for the representations made to SCOPA, especially where it appears that the versions presented could have been (or, have actually been) tested and verified or falsified before making such representations to SCOPA.
    • 4.4. It is probably in the best interest of SCOPA and necessary to ensure the most appropriate approach to this matter be deliberated and resolved upon, after having taken counsel, in view of the principles enshrined in the Intergovernmental Relations Framework Act.

 

  1. Where relevant, the submission is made and grievance lodged on the basis of section 25 of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act, 2004, which provides as follows:

 

Protection of members of public

  1. (1) A person, other than a member, who feels aggrieved by a statement or remark made by a member or a witness in or before a House or committee about that person, may submit a written request to the Secretary to have a response recorded.

(2) The committee referred to in section 12(2) must, subject to the standing rules, consider the request and, if approved, publish the response of the person in the appropriate parliamentary paper.

 

 

 

Grievances and concerns regarding suggestions by SCOPA that SAPS and SITA suspend payments to FDA

 

  1. The media started echoing extracts from the preliminary IPID report dated 25 October 2017, in turn fueling discriminatory sentiments and opinions against FDA without having been provided with accurate facts or assessment of the applicable legal principles. SAPS and SITA payments to FDA had initially continued, despite the initial media reports.

 

  1. SCOPA was subsequently presented with IPID’s report and other representations by SAPS and SITA on 29 November 2017. Despite adjourning with a long list of outstanding issues and uncertainties, a media report was published under the auspices of SCOPA on 30 November 2017, which stated that the SCOPA had ‘ordered’ SAPS and SITA to suspend all payments and contracts to FDA with immediate effect, and that Mr Keating was unwelcome[1] to attend the meeting.

 

  1. The lawfulness of the process to have published the media report and the content thereof will be addressed more thoroughly in due course, suffice to state that, although SCOPA was not competent to publish an order of that nature, which did not reflect a duly adopted resolution by the committee, yet SAPS and SITA appear to have acted on the strength of that order, in breach of duty and contract.

 

 

Grievances and concerns regarding investigations initiated

 

  1. FDA herewith respectfully submit a series of grievances pertaining to the investigations initiated into alleged procurement irregularities within SITA SOC Limited and the South African Police Service (and also related reports issued), with reference to what has been presented and discussed during the course of SCOPA meetings on 29 November 2017 and 21 February 2018.

 

  1. The original investigations scrutinizing procurement of FDA products and services to the state emanated from two separate organs of state, i.e. IPID and SITA. These investigations are still pending, yet certain conclusive findings have been suggested and decisive actions have, at least partly, been taken, which seem to be irrational and or unlawful.

 

  1. The authority to conduct these investigations, motive for initiating investigations and accuracy of reports to the legislature require closer scrutiny.

 

 

Grievances and concerns regarding investigation by Independent Police Investigative Directorate

 

  1. FDA has been forwarded a copy of a report appearing to be the IPID provisional investigation report dated 25 October 2017, by Mr Paul O’Sullivan. It is not certain whether this report:-
    • 1. Actually is, the official version;
    • 2. May have been disseminated by Mr O’Sullivan; and
    • 3. Whether Mr O’Sullivan had been an author or co-author thereof.

 

  1. In comparison to the content of media reports and the SCOPA meetings relating to IPID’s investigations into a SAPS member, former Acting National Police Commissioner Lt.-Genl. Phahlane and eventually FDA, the report forwarded by Mr O’Sullivan seems to be the report provided to the media and SCOPA (presumably by IPID or Mr O’Sullivan).

 

  1. This provisional IPID report by the Head of Investigations states that FDA had been investigated on a suspicion of wrongdoing by FDA director, Mr Keith Keating, which was related to an instance of ‘fiscal dumping’, due to an order being processed and payment made by SAPS on the last day of the financial year in 2016. FDA categorically denies the allegations of wrongdoing and benefitting from wasteful expenditure.

 

  1. To date, IPID could not yet indicate that wrongdoing could be indicated sufficiently to charge Mr Keating criminally or to advise SAPS that any award or contract with FDA should be set aside on review.

 

  1. IPID has pertinently failed to mention to SCOPA that the October 2017 report:
    • 1. Contained significant and material known flaws, which have transpired (and which should have been readily ascertainable prior to the issuing of the report);
    • 2. Was ultra vires in respect of the powers of the Head of Investigations in light of the IPID Act to make recommendations;
    • 3. Has not found fault with FDA procurement at a conclusive level, but only suggested, at most, working theories guiding the investigation;
    • 4. Did not lay a basis for IPID to unconditionally continue its investigations into FDA, as the matter had to be referred to the Minister to the extent that the ambit of the investigation fell outside the IPID mandate, which is to investigate SAPS;
    • 5. Was issued without having consulted FDA and presumably also without consulting SAPS records or officials.

 

  1. The progress updates presented to SCOPA on 21 February 2018 were to a large part repeats of former representations, inaccurate, and or patently misleading.

 

  1. It was specifically concerning to note IPID’s admission that its current efforts are not in cooperation with the intergovernmental Anti-Corruption Task Team (ACTT), of which IPID is supposedly part, especially with regard to the further admission that Bowmans are actively involved in IPID operations under a National Treasury and or SITA brief.

 

  1. FDA will direct communication to IPID wherein the irregularities having transpired in the IPID investigations, reports and their interactions with the media are addressed, which will be escalated to the Public Protector in the form of a formal complaint in due course. A copy hereof will be provided to SCOPA upon transmission.

 

  1. If it is found that the representations made by IPID have not been as reliable as purported, it is humbly submitted that it will be in the best interest of SCOPA to reconsider the views adopted based on the belief that those representations had been sufficiently accurate to also be reliable.

 

 

 

Grievances and concerns regarding the National Treasury, SITA SOC Ltd and Bowmans investigations

 

  1. FDA have also learnt that Bowmans have purportedly been appointed to investigate misconduct within SITA SOC Limited, although it is still uncertain why and on what basis SITA SOC Limited have said its board and National Treasury have approved thereof. Be that as it may, FDA have been materially affected by the actions of Bowmans, by virtue of their advice to SITA and cooperation with IPID to the exclusion of the ACTT, especially during the application and execution of a search and seizure warrant on certain properties related to their ‘overlapping investigation mandates’.

 

  1. It is of critical importance to ascertain the scope and parameters to the Bowmans brief, as the Intergovernmental Relations Framework Act applies to the Implementation Protocols between SAPS and SITA, regulating the agency mandate of SITA to allow lawful procurement and management of certain ICT contracts to fulfill the business requirements of SAPS within the allotted budgets from time to time.

 

  1. If Bowmans is mandated to advise SITA on procurement irregularities in SITA, the basis and nature of such advice must be presented to SCOPA as it directly pertains to the committee’s mandate. It cannot be tolerated that SAPS essential procurement requirements are interfered with through proxies under the auspices of lawful investigations, without transparency.

 

  1. A letter sent to Bowmans directly by FDA, with confirmation of receipt, will be forwarded to the Chairperson under parliamentary privilege for a discretionary decision to make the letter available to SCOPA members or witnesses for consideration. Suffice to state that FDA feels aggrieved by conduct of Bowmans during its investigations.

 

  1. Enclosed in the schedule below, SCOPA is provided with questions and descriptions of sources of evidence to test and verify or falsify the submissions to SCOPA by SITA.

 

  1. If it is found that the representations made by SITA and the integrity of advice by Bowmans have not been as reliable as purported, it is humbly submitted that it will be in the best interest of SCOPA to reconsider the views adopted based on the belief that those representations had been sufficiently accurate to also be reliable.

 

 

Suggested approach to verify information presented to SCOPA

 

  1. The Schedules to this covering letter are structured as follows:

 

  • 1. An allegation constituting the essence of what have been alleged or presented to SCOPA, with which FDA are in disagreement.
  • 2. A concise summary of FDA’s considered opinion on each of the relevant allegations[2].
  • 3. A series of questions[3] that committee members are encouraged to consider in view of statements made to the Chairperson to date, and to pose those questions to attendees and witnesses as appropriate.
  • 4. Descriptions of potentially relevant sources of evidence[4] that could be requested from representatives of stakeholders, which should test the veracity of the allegations made pertaining to FDA.

 

  1. For ease of reference, the following allegations are addressed herein below:
    • 1. Schedule 1 (p.11): FDA has a corrupt relationship with SAPS SCM officials, which is evident from the photographs at Old Trafford.
    • 2. Schedule 2 (p.12): Government have spent ±R5,9bn on FDA.
    • 3. Schedule 3 (p.13): FDA services have been procured irregularly.
    • 4. Schedule 4 (p.16): FDA had been unwilling to cooperate in lawful investigations of IPID or SITA / Bowmans.
    • 5. Schedule 5 (p.17): FDA products don’t require maintenance or comprehensive support services (with specific reference to Rofin, Spheron and Nikon products).
    • 6. Schedule 6 (p.19): powers and privileges of IPID – see also Schedule 8.
    • 7. Schedule 7 (p.20): Certain FDA contracts have escalated by 800% since 2009 / SITA have paid or awarded contracts to FDA worth R919m.
    • 8. Schedule 8 (p.22): FDA are threatening witnesses to prevent them from testifying against them.
    • 9. Schedule 9 (p.21): Memorandum on IPID conduct and applicable legal provisions.
    • 10. Schedule 10 (Spreadsheet): Procurement history between FDA and SITA directly.

 

 

Proposed way forward

 

  1. It is humbly requested that, following deliberation on these matters, the following courses of action be resolved on, i.e. to:
    • 1. Demand responses from witnesses or members who have presented statements to the contrary, or which could be regarded as having been potentially misleading.
    • 2. Instruct SITA SOC Ltd to report on the legal advice received in respect of FDA awards or contracts and subsequent board decisions taken, duly regarding the application of the so-called Gijima-judgement, as undertaken by the CEO of SITA SOC Ltd on 29 November 2017.
    • 3. Clarify that members of the public are generally entitled to attend SCOPA meetings unless specific prohibitions are relevant, which prohibitions did not apply to Mr Keith Keating on 29 November 2017.
    • 4. Publish correction statements or appropriate responses to the extent that it transpires that incorrect or misleading statements have been presented to or issued under the auspices of the committee, specifically with regard to the 30 November 2017 media statement published by SCOPA.

 

  1. Thank you for taking time to read and consider this submission. It is trusted that this submission would be of value in support of the legislature’s oversight functions, during this truth-seeking exercise.

 

Yours truly,

 

 

Forensic Data Analysts (Pty) Ltd

Per: V.Mufamadi (Chairman of the Board)

 

 

 

Schedule 1

ALLEGATION:

  • FDA has a corrupt relationship with SAPS SCM officials, which is evident from the photographs at Old Trafford

 

FDA’S POSITION ON THE ALLEGATION

  • FDA categorically denies having paid for the trip, tickets or shirts. The representations to parliament on this issue have been deceitful, as there had been no basis on which to allege any wrongdoing.

QUESTIONS:

  • Do the photographs presented by Mr Brauteseth of the Manchester United football match constitute clear evidence of a corrupt relationship between FDA and SAPS SCM officials?
  • Why were the original versions of the photographs not presented?
  • Do SAPS HR records reflect that the officials on the photo were lawfully absent and permitted to attend the RFID conference in the UK?
  • Do SAPS financial records reflect that SAPS have paid for the staff trip to the UK?

EVIDENCE:

  • SAPS HR records of members absence from work during the period, including official reasons for absence.
  • SAPS financial records reflecting payments of expenses to attend UK trip.
  • A memorandum had been signed by the Minister and Commissioner at state expense.

 

 

 

Schedule 2

ALLEGATION:

  • Government has spent ±R5,9bn on FDA

 

FDA’S POSITION ON THE ALLEGATION

  • The amounts alleged by IPID in the October 2017 report are grossly overstated and nowhere in accordance with public accounts. Among other mistakes noted in the IPID report, the entire Unisys spending have been allocated to FDA, which is a complete misrepresentation of the facts.
  • According FDA’s records, the total rand value goods and services purchased and paid to FDA by SAPS directly over a 12 year period is R481m.
  • This is in stark contrast to the IPID report which categorically states, SAPS paid to FDA, for this period, R4,2bn, i.e. an overstatement of R3,7bn.

QUESTIONS:

  • Have SAPS spent R5,9bn on FDA goods and services to date?
  • How was the ±R5,9bn calculated as repetitively alleged by IPID to have been paid to ‘Keating companies’?
  • Do financial records and public accounts reflect a total amount of R5,9bn?
  • Why would incorrect amounts continually be referred to without verification of the the accuracy thereof?
  • Is SCOPA’s oversight function potentially undermined by the representation of patently incorrect figures?

EVIDENCE:

  • Actual spending by SAPS (directly) and SITA (as agent of SAPS) to FDA.

 

 

Schedule 3

ALLEGATION:

  • FDA services have been procured irregularly

 

FDA’S POSITION ON THE ALLEGATION

  • General statement:
    • FDA is unaware of the specific nature and scope of the alleged irregularities, but can confidently state that it has never been the cause of any irregularity and have always complied with its obligations during the entire procurement lifecycle.
  • Specifically relevant instances:
    • Maintenance and support:
    • In 2006 the products were placed on the existing tender with Gijima (with FDA as subcontractor).
    • In 2011 there was an open tender process which was followed, which included the Rofin products, and this open tender process was eventually awarded to Khauleza (with FDA as subcontractor).
    • SITA then later requested a direct contract between SITA and FDA.
    • The complete and appropriate SAPS and SITA processes were followed to the best of our knowledge.
    • SAPS requested the service to continue; a business case was forwarded to the procurement division of SITA.
    • SITA procurement committees passed resolutions for a five year contract.
    • A submission to the SITA board by the procurement committee led to two resolutions wrt a five year agreement being concluded with FDA.
    • The allegation that no open tender process was followed to put this tender in place is a complete misrepresentation of the facts.
    • Hardware procurement:
    • Procurement was through an open tender process RFB638/08 and through bids such as BID 19/1/9/1/235 TD(14).

 

QUESTIONS:

 

  • Had FDA products and services been procured irregularly or without following prescribed processes in circumvention of the PFMA?
  • Whose duty is it to ensure proper procurement processes were followed?
  • Whose responsibility was it to obtain National Treasury approval to procure FDA maintenance services for a five year period?
  • Has SITA indicated to FDA that there had been any irregularity suspected in any of their procurement instances?
  • Has SAPS indicated to FDA that there had been any irregularity suspected in any of their procurement instances?
  • Whose initiative was it to procure FDA services directly to SITA, as opposed to a subcontractor agreement?
  • Whose duty is it to report instances of improper procurement?
  • What is the correct response to observations of irregular procurement once noted?
  • Has FDA been awarded each and every bid submitted to SITA and SAPS?
  • Has any FDA awards or contracts been set aside on review?
  • What members of staff have been dismissed or disciplined in direct relation to irregularities in favour of FDA?
  • Does SITA issue monthly compliance reports to SAPS with quantified measurables?
  • Has the Auditor General noted any concerns with FDA procurement?
  • Has National Treasury appointed forensic investigators to investigate corruption in SITA SOC Limited or FDA?
  • What were the details of the procurement process leading up to the issuing of an order, taking of delivery and payment on 31 March 2016? Were these details comparable to other lawful orders during the same period?
  • Who took initiative to renew or extend FDA contracts without bidding afresh?
  • What due diligence processes were followed, based on which it was decided to follow confined bidding?
  • Have Bowmans been investigating irregularities into a contract that they had negotiated on behalf of Sita?

 

EVIDENCE:

  • Bid committee and board resolutions approving the procurement, with records of decisions.
  • Contracts concluded following procurement approvals by committees and boards.
  • SITA monthly SLA compliance reports to SAPS are available and shows consistent performance and compliance indicators.
  • 360 Spherical bid was not awarded to FDA ±2014.
  • 2018 February SAPS stepping plates bid was not awarded to FDA, despite FDA bid being compliant and approximately R7000 cheaper (per kit, i.e. at least 20% cheaper) than the eventual preferred bid (to the best of our knowledge).

 

 

 

Schedule 4

ALLEGATION:

  • FDA had been unwilling to cooperate in lawful investigations of IPID or SITA / Bowmans

 

FDA’S POSITION ON THE ALLEGATION

  • Until today, neither FDA nor Mr Keating have ever been contacted to cooperate with any investigations, so to state anything to the contrary is utterly misleading. During the execution of the search and seizure warrant, FDA did comply with the terms of the warrant, despite multiple transgressions having been noted, which now forms the basis of North Gauteng High Court motion proceedings.

 

QUESTIONS:

  • Have FDA been unwilling to cooperate with lawful investigations by IPID or SITA / Bowmans?
  • Which authorised IPID or other officials have issued a request to cooperate?
  • What was the date(s) of transmission of the request(s)?
  • Exactly what cooperation, information or explanations are alleged to have been requested?
  • The name(s) of the intended recipient(s) to whom any such request(s) was/were directed?
  • The communication modus or media of any such request(s)?
  • What responses were received from the alleged person to whom the alleged request had been directed, or legitimate proof of default?

EVIDENCE:

  • No known evidence proving that FDA have been unwilling to cooperate with lawful investigations.

Schedule 5

ALLEGATION:

  • FDA products don’t require maintenance or comprehensive support services (with specific reference to Rofin, Spheron and Nikon products)

 

FDA’S POSITION ON THE ALLEGATION

  • The allegation that the equipment requires no maintenance or comprehensive support services, is a clear indication that SCOPA has been misled.
  • SITA/Bowmans contacted Rofin in February 2018, to which Rofin offered a comprehensive report on the maintenance requirements applicable to SAPS. This report clearly states that the maintenance provided by FDA to SAPS is at the correct level.

QUESTIONS:

  • Do Rofin, Spheron and Nikon products require maintenance and support services? What service levels are required by SAPS?
  • On what basis was it reported that the service levels to SAPS are fraudulent?
  • Do SAPS SOP’s reflect that there are no maintenance requirements, or that there are maintenance requirements?
  • What are the implications of dysfunctional equipment in the context of the criminal justice system?
  • Is it reasonable to compare maintenance requirements of the SAPS members with that of European users?

 

EVIDENCE:

  • Correspondence between Rofin Australia and SITA.
  • Maintenance records of products over time.
  • Photographic evidence of broken, damaged, and worn equipment.
  • User statistics depicting the amount of users per unit, having to share the forensic light source sets and other equipment.
  • SAPS statistics regarding ‘positive crime scenes’ (i.e. percentage of crime scenes where fingerprints were obtained).

 

 

 

 

Schedule 6

ALLEGATION:

  • FDA are threatening witnesses to prevent them from testifying against them

 

FDA’S POSITION ON THE ALLEGATION

  • Despite the absence of official complaints to that effect, FDA denies ever having threatened potential witnesses to induce reluctance. The utterance of such a suggestion indicates both malice and deceit by the CEO of SITA and Mr Sesoko of IPID.
  • There are no known case numbers under which such instances have been reported, nor any indication that FDA had threatened anyone.
  • FDA have not been charged with intimidation, harassment or attempts to commit crime.

QUESTIONS:

  • Have witnesses been threatened by FDA to induce reluctance to present incriminating evidence against FDA in lawful investigations?
  • What are the case numbers under which these instances have been reported?
  • Have the investigations into the case numbers shown any indication that FDA has threatened anyone?
  • Has FDA been charged with intimidation, harassment or attempts to commit crime?

 

EVIDENCE:

  • Case numbers with SAPS (if any).
  • Complaints with IPID (if any).
  • Investigative reports by SAPS or IPID (if any).
  • Criminal charge sheets (if any).

 

 

 

Schedule 7

ALLEGATIONS:

  • Certain FDA contracts have escalated by 800% since 2009
  • SITA have paid or awarded contracts to FDA worth R919m

 

FDA’S POSITION ON THE ALLEGATIONS

  • The asset base to which the services applied radically increased from 118, to 1722, to 3573 products (not components) under contract, leading to an increase in the reasonable costs of duly approved service delivery performance.
  • Contracts have not ‘escalated’ by 800%. Escalations were inflation related adjustments applied to actual cost factors.
  • In response to the request for a 5 year service offering on Rofin, Spheron and Nikon maintenance and support bid, FDA offered a 1, 3 and 5 year bid, to which SITA had elected to approve the 5 year bid (as requested by SITA). The resultant discount for a longer term appointment amounted to a ±24% saving in contract value, which was not mentioned to SCOPA. A further 1%-2% discount was allowed during negotiations following the procurement finalization process.
  • Renewals, extensions, increases and procurement were facilitated by SITA in each and every instance, duly approved by the procurement committee and the board (accounting authority) in each and every instance.
  • Total contract value from bids awarded to FDA (by SITA), should amount to:
    R 919,293,390.07 (incl VAT).
  • The total contract value from bids awarded to FDA (by SITA) amounts to:
    R 849,793,390.26 (incl VAT).
  • The total payments to FDA by SITA amounts to: R 540,782,915.32 (excl VAT).

 

QUESTIONS:

  • What is the difference between escalation and basis of calculation?
  • Based on what is an 800% increase or escalation alleged or calculated?
  • Did the asset base grow to which the service fees applied?
  • Did Bowmans negotiate any of the FDA contracts on behalf of SITA (that are now being investigated by Bowmans for supposed irregularity)?

 

EVIDENCE:

  • See spreadsheet in Schedule 10.
  • SAPS SLA’s with SITA, and SAPS business requirements on which business cases were drawn up by SITA (which in turn gave rise to the SLA’s between SITA and FDA).
  • SITA SLA’s with FDA and monthly compliance reports reflect basis of calculations.
  • Public accounts.

 

 

 

Schedule 8

ALLEGATION:

  • IPID have the powers to:
    • recommend that SAPS arbitrarily suspend payments to FDA.
    • advise Parliament to issue an instruction to that effect.
    • delegate any functions to the Head of Investigations.
    • make determinations of innocence or guilt of private parties.
  • IPID have the rights to:
    • present information to the public on pending investigations.
    • unconditional immunity when presenting information to Parliament.

 

FDA’S POSITION ON THE LEGAL BASIS OF IPID CONDUCT

  • Please refer to the following extracts from relevant legislation:
    • Section 7(8), 10(3), 33(2) of the IPID Act.
    • Section 17(2)(e) and 117(2)(e) of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act, 2004.
    • Regulations 10 and 13 of the IPID Regulations.
    • Regulation 11, 13 and 14 of the Public Service Regulations (GN. 877, 29 July 2016).
    • Section 16A(2)(a) and Schedule 1 of the Public Service Act.
  • See Schedule 9 below.

Schedule 9

MEMORANDUM ON IPID CONDUCT AND APPLICABLE LEGAL PROVISIONS

  1. The purpose of this Schedule 9 is to record various observations regarding the following perceived instances of irregular conduct, which are to the best of our knowledge accurate and correct:
    • 1. In respect of the 25 October 2017 the delegation of the power by the Executive Director of the Independent Police Investigative Directorate (“IPID”), Mr. Robert McBride (“McBride”), to the National Head of Investigations of IPID, Mr. Matthews Sesoko, appears unlawful and the subsequent recommendations made in terms of such delegation therefore possibly misdirected and ultra vires;
    • 2. Certain representations made by McBride, regarding FDA, to the Standing Committee on Public Accounts (“SCOPA”) on the 29th of November 2017, are assessed to have been potentially intended to mislead;
    • 3. The disclosures of information, regarding an investigation into alleged irregularities by FDA, likely by unidentified IPID officials to the media and other unauthorised individuals, are assessed to have been potentially unlawful if in contravention of various provisions of legislation.

 

Recommendations prima facie not within the powers of Head of Investigations of IPID, Sesoko and misdirected to National Commissioner of Police

 

  1. On the 8th of November 2017, the Daily Maverick had published an article[5] written by journalist Ms Marianne Thamm, wherein she cited a letter[6] by the Head of Investigations of the Independent Police Investigative Directorate (“IPID”), Mr Matthews Sesoko (“Sesoko”), written to the then acting National Police Commissioner, Lieutenant General Mothiba, as her source for various allegations of wrongdoing by FDA.

 

  1. The following extracts from the article are of specific importance for purposes of FDA’s demands:

 

In a letter dated 25 October 2017 to current acting SAPS national commissioner, General Lesetja Mothiba, IPID head of investigations, Matthews Sesoko, wrote……..

 

Sesoko recommended to the National Commissioner that no further payments be made to FDA until the investigation, Sinoville CAS 146/05/2017, had been completed

 

  1. The subject letter mentioned by Daily Maverick as its source will hereinafter be referred to as the “25 October Interim Investigation Report”. To the best of our knowledge IPID has neither contested the existence of the 25 October Interim Investigation Report, nor the existence of the content as reported on, and no contradictions have transpired in direct reference thereto.
  2. We will not address all the factual and other inaccuracies contained in this media article at this time, and reserve the right to do so later at an appropriate time in the appropriate forum.
  3. We do however wish to point out, in the premise, that the article accurately reflects the contents of the 25 October Interim Investigation Report, various illegalities may have transpired in the course of the investigation, and the drawing up and purported commissioning of the report.
  4. Section 7(8) of the IPID Act states the following:

“All recommendations which are not of a criminal or disciplinary nature must be referred to the Minister and provide a copy thereof to the Secretary.”

  1. Section 10(3) of the IPID Act states as follows:

“The Executive Director may not delegate any of the powers, functions or duties referred to in sections 7(1), (2), (3), (5), (6), (7), (8), (9) and (10), 8, 20, 22, 31(2), 32(1) and (2), and 34 of this Act.”

  1. Section 7(8) read together with section 10(3) thus creates the following requirements for a recommendation te be made by IPID that is not of a criminal or disciplinary nature:
    • 1. The recommendation must be made by the Executive Director;
    • 2. The recommendation must be made to the Minister of Police and a copy sent to the Secretary.
  2. Assuming that the recommendation to the National Commissioner in the 25 October Interim Investigation Report (hereinafter referred to as the “Recommendation”) to suspend payments to FDA, as reported by Thamm, was the only recommendation by IPID not to pay FDA, and that there was no other identical or similar recommendation by the Executive Director to the Minister, the recommendation is likely to have been ultra vires and misdirected.
  3. IPID are to be implored to point out if a competent recommendation was in fact made, as FDA’s legitimate interests or expectations may have been adversely and externally affected thereby.
  4. Further to the above, the Recommendation is assessed to be potentially irrational, unlawful, premature and ill-considered, for inter alia, the following reasons:
    • 1. The investigation was not finalised at the time of the making of the Recommendation nor has it been at the time of dispatching this document;
    • 2. FDA’s version had not yet been sought at the time of the making of the Recommendation;
    • 3. The Recommendation is in effect a recommendation that SAPS and/or SITA unlawfully breach their contractual duties towards FDA;
    • 4. The immediate implementation of the Recommendation could have (had) a disastrous effects on the ability of SAPS to execute their constitutional mandate, wherefore it may have been recklessly issued;
    • 5. There are specific legal mechanisms with which an aggrieved contracting party could enforce contractual rights if just cause can be shown, which we submit was not shown to SAPS as contracting party in the instance;
    • 6. If SAPS or SITA wish to set aside the awards or contracts between themselves and FDA, they are entitled and compelled to approach a competent court of law to do so, provided that they may not act arbitrarily and unlawfully as the Recommendation appears to suggest they should (have).
  5. We further wish to place on record that in the event that either SAPS or SITA act on the strength of this unlawful recommendation, that FDA reserves his right to institute a claim for damages against IPID or other appropriate legal proceedings to protect its interests.

 

Intentional misrepresentation to SCOPA by McBride in contravention of section 17(2)(e) of The Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act (“the Immunities Act”)

  1. During the SCOPA hearing on the 29th of November 2017, McBride, at all material times acting as the Executive Director of IPID, stated, amongst others, the following:

“We are hoping that Mr. Keating can find it in his conscience to cooperate with us and provide the necessary information and explanations. He hasn’t yet.”

  1. By necessary implication, this statement is founded on the following bases, assumptions, or at the very least, carries the following innuendo, which are rejected and rebuttable by FDA, i.e. that:
    • 1. IPID has extended a request (either formally or informally) to Mr Keating to cooperate, provide information and explanations; or
    • 2. Mr Keating did not find it in his conscience to cooperate, provide information and explanations; and,
    • 3. Mr Keating has in fact refused to cooperate by deliberately failing or neglecting to provide the necessary information and explanations upon due request.
  2. Mr Keating specifically denies the he was at that time in any manner whatsoever requested by IPID (or for that matter, any of the other law enforcement agencies such as the South African Police Services (“SAPS”), the Directorate for Priority Crime Investigations (“Hawks”), the Special Investigating Unit (“SIU”) or even the National Prosecuting Authority (“NPA”) to provide cooperation, information and explanations regarding the pending investigation.
  3. IPID are accordingly challenged to provide copies of any and all such alleged written requests and if such alleged requests were issued, to provide full details thereof, including, but not limited to the following, in each instance:
    • 1. The authorised IPID official having issued the request;
    • 2. The date(s) of transmission of the request;
    • 3. Exactly what cooperation, information or explanations are alleged to have been requested;
    • 4. The name(s) of the intended recipient(s) to whom any such request(s) was/were directed;
    • 5. The communication modus or media of any such request(s); and,
    • 6. The response by the alleged person to whom the alleged request had been directed, or legitimate proof of default.
  4. As regards to the allegation by Mr McBride that Mr Keating could not find it in his conscience to cooperate, IPID should provide information and explanations, we enquire by virtue of which facts this statement had been made. You will undoubtedly agree that absent any such facts, this statement must have been founded on Mr McBride’s extra-sensory perceptions, which are obviously void of any foundation. Be that as it may, Mr Keating denies that he has ever had the resolved conviction not to cooperate, provide information or explanations.
  5. In addition to the foregoing, Mr Keating denies that he has ever refused or failed to cooperate, to provide information or explanations.
  6. The above statement by Mr McBride, to his knowledge, was therefore patently false and misleading, was aimed at causing Mr Keating harm and was made with the purpose of bringing the SCOPA members and other attendees, the media and the general public (the matter was broadcasted) under the false impression that FDA have been uncooperative in the investigation.
  7. Section 117(2)(e) of the Immunities Act states as follows:

“(2) Any person who —

(e) whether or not during examination under section 15, wilfully furnishes a House or Committee with information, or make as statement before it, which is false or misleading commits an offence and is liable to a fine or to imprisonment for a period not exceeding two years or both to the fine and imprisonments”

  1. In the absence of any proof of FDA not cooperating with lawful investigations, the aforementioned statement by McBride may have been in contravention of section 117(2)(e) of the Immunities Act and could constitute a criminal offence.
  2. The Executive Director, Mr McBride and/or IPID should direct official communication to the chairperson of SCOPA, informing him that the allegations that Keating was not cooperating with the IPID investigation, were false, that the statement should be withdrawn from the record if possible, and that the SCOPA members should be specifically notified of that correction.
  3. Representations in this regard will be made to the chairperson of SCOPA and the process in terms of section 12 of the Immunities Act initiated to have a response recorded.

 

Disclosure of information to unauthorised persons in contravention of the IPID Act and Regulations, and the Public Service Act and Regulations.

  1. The following articles are indicative thereof that information is likely to have been unlawfully disclosed by IPID officials to various persons, including Mr Paul O’Sullivan, Ms Marianne Thamm and Ms Angelique Serrao:
  2. https://www.dailymaverick.co.za/article/2017-12-06-sapssita-capture-ipid-raid-businessman-keith-keating-and-phahlanes-homes/#.Wi-Ii7T1WgQ
  3. https://www.news24.com/SouthAfrica/News/ipid-hawks-raid-7-properties-in-case-against-phahlane-saps-contractor-20171206
    • 1. The details of information uncovered during the said search and seizure operation, including, but not limited to:
      • 1.1. Cash found in a vault at FDA offices during the execution of the search and seizure warrant;
      • 1.2. Information allegedly proving a case being investigated against McBride had been fabricated.
  1. The disclosure of information regarding the IPID investigation, which disclosure is likely to have been made by IPID officials, to unauthorised persons, including civilians and journalists, in the premise, could have been in contravention of section 33(2) of the IPID Act, which states as follows:

(2) Any member of the Directorate who wilfully discloses information in circumstances in which he or she knows, or could reasonably be expected to know, that such a disclosure will or may prejudicially affect the exercise or the performance by the Directorate of the powers and functions, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

  1. It is submitted as a strong probability that the officials who had disclosed the information did so wilfully and knew or ought reasonably to have known that the disclosure of this information could potentially prejudicially affect the exercise or the performance by the Directorate of its powers and functions.
  2. Regulation 10 of the IPID regulations (regulations published in the Government Gazette on the 10th of February 2012), states as follows:
  3. Access and control of confidential information and records.—

(1) All information, whether verbal or in writing, and all documentation acquired during the course of an investigation conducted in terms of the Act and all records pertaining to any such investigation are to be treated as confidential and may not be divulged to any person outside of the Directorate unless authorised to be divulged, in the interests of justice, by—

  • the Executive Director or relevant provincial head, as the case may be, in writing; or
  • an Act of Parliament.

(2) All information, documentation and records pertaining to an investigation must be secured at all times in a manner that would effectively prevent access to such information, documentation and records by an unauthorised person.

  1. There can be no doubt that the information contained in the 25 October Interim Investigation Report was information gathered during the course of an investigation, and that the disclosure thereof by any IPID official to any unauthorised parties, would then be a contravention of regulation 10 of the IPID Regulations.
  2. The same goes for the information pertaining to the search and seizure warrants executed as reported on by the media.
  3. Regulation 13 of the IPID regulations states the following:

Disciplinary measures in relation to members of the Directorate.—The Public Service Disciplinary Code applies in the case of disciplinary proceedings initiated against a member of the Directorate as a result of the alleged misconduct of such member or failure to comply with a lawful command, order or instruction.

  1. The following provisions of the Public Service Regulations (GN. 877, 29 July 2016) are also applicable to the unlawful disclosure of the above mentioned information:
  2. Adherence to Constitution and other laws. — An employee shall
  • be faithful to the Republic and honour and abide by the Constitution and all other law in the execution of his or her official duties;

(d) abide by and strive to be familiar with all legislation and other lawful instructions applicable to his or her conduct and official duties;

  1. Ethical conduct.—An employee shall—

(m) not use or disclose any official information for personal gain or the gain of others;

  1. Performance of official duties.—An employee shall—

(m) not release official information to the public unless he or she has the necessary approval;

 

  1. The aforementioned provisions of the IPID Act and Regulations, Public Service Act and Regulations, prohibit the disclosure of the 25 October Interim Investigation Report and the information regarding the search and seizure warrants to any unauthorised persons, including media or any member of the public.
  2. Section 16A (2)(a) of the Public Service Act states as follows:

 (2) A head of a department shall—

  • immediately take appropriate disciplinary steps against an employee of the department who does not comply with a provision of this Act or a regulation, determination or directive made thereunder;
  1. The Executive Director of IPID is listed in Schedule 1 of the Public Service Act as the Head of Department of IPID, and therefore has a duty to immediately take appropriate disciplinary steps against any IPID officials if established that these individuals disclosed the mentioned information to the mentioned unauthorised persons or any other unauthorised persons.
  2. If the identity of the IPID officials that disclosed the information are not already known to the Executive Director, it follows rationally that the Executive Director must take appropriate steps to establish their identities, the circumstances of the disclosure and comply with his duties in terms of section 16A(2)(a) of the PSA.
  3. This concludes the submission on behalf of FDA regarding IPID, provided that rights are reserved to make additional submissions in an appropriate forum.

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[1]If it was inappropriate for Mr Keating to have attended the SCOPA meeting on 29 November 2017, FDA requests formal correspondence from the National Assembly to state the basis on which it is found to have been inappropriate. If the basis is well founded, an unconditional apology is tendered, although it seems potentially in violation of the Constitution to prohibit attendance at open meetings. The fact of the matter is that Mr Keating had heard of the meeting whereat his interests would be discussed in the media, and decided to take a public seat. In no respect was the mere presence of Mr Keating meant to offend.

[2] FDA have comprehensive answers to each of these allegations and questions, but have not been placed before an appropriate forum where these issues could be fairly ventilated. FDA are willing to address the allegations and to provide answers to the questions presented, upon being given the opportunity to do so.

[3] non-exhaustive lists, but sufficient to show that representations to SCOPA have not been independently or ‘forensically’ evaluated.

[4] non-exhaustive lists, but sufficient to show that representations to SCOPA have not been independently or ‘forensically’ evaluated.

[5]https://www.dailymaverick.co.za/article/2017-11-08-scorpio-saps-forensic-torch-contract-a-r1bn-gift-that-keeps-on-giving/#.WjTH-bT1U6h

[6] Also referred to herein as the “25 October Interim Investigation Report”