NPA’s failure to prosecute criminal matters must be dealt with – Herman Mashaba

Joburg mayor says he will seek Parliament's intervention

Mashaba seeks Parliament’s intervention on the NPA’s failure to prosecute City’s criminal matters

25 July 2019

Yesterday, I wrote a letter to the Chairperson of the Portfolio Committee for Justice and Correctional Services, Honourable Bulelani Magwanishe, to request Parliament’s intervention on the National Prosecuting Authority’s (NPA) failure to prosecute the City of Johannesburg’s criminal matters.

Attached to the letter to the Committee Chairperson is a complete list and a lacklustre progress report on the City’s criminal matters that are receiving inadequate attention by the NPA in Johannesburg. It also includes months of letters that I have written to the NPA in an effort to ensure that justice is served to the residents of Johannesburg. The City has also submitted a number of damning forensic reports relating to some of these criminal matters.

The City is seeking the urgent intervention of the Portfolio Committee and wishes to make representations to the Committee at its nearest available sitting.

When I was elected Executive Mayor of the City of Johannesburg I made rooting out corruption my administration’s priority. Not long after that, we created an anti-corruption unit, Group Forensic and Investigation Services (GFIS), headed by former provincial Scorpions and Hawks boss, General Shadrack Sibiya.

Since its establishment, GFIS has received and investigated 5,597 cases. The estimated value of contracts and matters investigated total just under R34 billion. Moreover, GFIS has been available to provide assistance to the SAPS and Hawks in order to expedite criminal investigations.

GFIS investigates allegations of corruption, gathers evidence and compiles reports that are thereafter handed over to the South African Police Service (SAPS) or the Directorate for Priority Crime Investigation (DCPI) so that a criminal docket is opened for further investigation and prosecution.

Once the criminal matters are handed over to the SAPS, the matters that are ripe for prosecution are handed to the NPA.The City, unfortunately, has found the NPA to be utterly ineffectual in prosecuting the City’s matters.

The City, through GFIS and myself, has engaged the Adv. Chauke, Director for Public Prosecutions in Johannesburg, for months in order to ensure that the City’s criminal matters are brought to finality and those who elected to steal public money are brought to justice.

However, these engagements have not resulted in any meaningful progress or successful prosecutions. In fact, numerous slam dunk cases have been withdrawn from court for over a year.

Despite our genuine efforts to assist the NPA in finalising these matters, they appear no closer to being re-enrolled. This has resulted in a number of significant criminal cases being left unattended to by the NPA.

These include, amongst others:

- The Mbali McClaire matter (CAS: 62/10/2015). McClaire was accused of fraudulently devaluing private properties with the intention of decreasing the rates payable by the owners to the City. It is alleged that she devalued several properties by more than R500 million, which lost the City an estimated R20 million in revenue. The matter was reported to the DCPI in October 2015, however there was no progress until the matter was broadcast on Carte Blanche on 13 November 2016.

As a result of a number of interventions by GFIS, the accused was arrested in January 2017. The matter was then placed on the roll and thereafter withdrawn. The DCPI advised that this was due to the fact that it, as well as the NPA, were unable to trace the owners of the 22 properties that were devalued. Astoundingly, one of the devalued properties was 64 Eloff Street, which houses both the Specialised Commercial Crimes Unit of the NPA and DPCI’s offices in Johannesburg. One is left questioning why they unable to contact and interview their own landlord.

- The Setheo Engineering matter (CAS: 399/05/2017). This case involves serious fraud and corruption at the Eldorado Park and Hopefield power substations, where R88 000 000.00 was paid to the contractor for work that had allegedly been completed in 28 separate payments between July 2015 and December 2016. However, during an inspection by GFIS, it was discovered that little to no work had been completed and there was fraudulent misrepresentation on the job cards.

I too visited the sites of these developments and was alarmed at the lack of work done. Over and above this, it was discovered that the contractor who was awarded the tender to build and upgrade the sub-stations used a fraudulent bank guarantee to secure the contract.

GFIS’s investigation was supported by a forensic report with overwhelming evidence. The suspects were later arrested and appeared in court. The matter was postponed to a later date and then provisionally withdrawn by the NPA pending a financial investigation by the Financial Asset and Forfeiture Investigation Unit of the DPCI. This begs the question as to why did the prosecutor issue a warrant of arrest, believing the case was prosecutable, only to withdraw the matter at a later stage?

It is important to note that many of the GFIS investigators are former DPCI investigators with an abundance of experience in law enforcement. It is a curious occasion when former DPCI investigators believe that there is sufficient evidence to secure a prosecution, which the NPA initially agrees with, only for the NPA to withdraw the matters when it is time to prosecute.

Following months of disappointing correspondence with Adv. Chauke, I then wrote to Adv. Shamila Batohi, the National Director of Public Prosecutions, and Lt. General Lebeya, the National Head of the DPCI, on 16 May 2019.

Regrettably, the City received no response to this letter – nor to a follow up letter dated 21 June 2019.

We have been unable to realise any tangible progress regarding these prosecutable matters. To date, only two have been placed on the roll for prosecution, with the rest seeing no movement.

I have an obligation as the Executive Mayor of the City of Johannesburg to ensure that whenever public funds are allegedly misused or when corruption occurs within the City administration, that such allegations are investigated swiftly, and where warranted, prosecuted.

I have humbly requested that the City of Johannesburg be allowed to present to the Portfolio Committee on our experiences regarding the NPA and the lack of due deference given to our criminal matters.

This is with the hope that the Portfolio Committee will hold the NPA accountable for its failures in ensuring that it conducts itself without fear or favour.

Issued by Tony Taverna-Turisan, Director: Legal Services, Office of the Executive Mayor, 25 July 2019