House of Cards: O’Sullivan vs Phahlane – who will outwit, outlast, outplay?

Thing is, you always need a strategy. If you don’t have one you’re bound to slip up, be caught on the back foot, act impulsively. That is precisely why forensic investigator Paul O’Sullivan, when he last found himself in the dock of a South African court in November last year on passport-related charges, obtained a court order preventing SAPS or the NPA from arresting him without a summons or alerting him at least 48 hours beforehand.

O’Sullivan most certainly wasn’t going to make a dash for it. He had handed in his two legally obtained passports after being dragged off a plane en route to the UK at OR Tambo on April 1. Before his departure O’Sullivan had sent an e-mail to Hawks spokesperson, Brigadier Hangwani Mulaudzi, about the Hawks’ delivery of 27 questions to Minister of Finance, Pravin Gordhan, earlier in the year and vowing to send Hawks Head Lieutenant-General Mthandazo Ntlemeza “to prison for a very long time”.

Provoked, they came for him.

In November, during O’Sullivan’s second or third court appearance, Deputy Judge President Aubrey Ledwaba (he who dismissed President Jacob Zuma’s appeal against the reinstatement of 783 charges) granted the order as O’Sullivan’s legal team had argued that the cases brought against the forensic investigator were “frivolous and vexatious”.

In the meantime SAPS have gone in search of less frivolous and vexatious cases to pin on O’Sullivan, it seems.

The long-term goal of it all was to prevent exactly what happened on Monday night when eight vehicles carrying at least 17 plainclothes police officers bagged O’Sullivan as he was leaving the Afriforum offices. Attorney Sarah Jane Trent, who had spent the weekend in jail after being picked up at O’Sullivan’s offices on Friday, was in the vehicle with O’Sullivan at the time.

Judge Ledwaba’s court order was made with the agreement of the “respondents” in the Section 26B of the Citizenship Act passport case including National Director of Public Prosecutions, Shaun Abrahams, Minister of Justice and Correctional Services, Michael Masutha, Minister of Police, Nathi Nhleko, acting Commissioner of Police Khomotso Phahlane himself, Hawks Head Lieutenant-General Mthandazo Ntlemeza, Gauteng Hawks Head Prince Mokotedi as well as state prosecutor, Advocate Sello Maema.

On Monday night, Afriforum’s legal spokesperson Willie Spies could be heard attempting to explain to the arresting officer, one Brigadier P D Ncube, the terms of Judge Ledwaba’s order. The officer appeared to ignore Spies and continued writing before arresting O’Sullivan and transporting him to the Kameeldrift police station. Trent recorded the interaction on her phone.

Later, during the late-night application to the North Gauteng High Court to have O’Sullivan released and heard by Judge Francis Legodi, the forensic investigator’s legal representative, Advocate Quintus Pelser, argued that Brigadier Ncube was in contempt of court and should be charged.

Advocate Sibusiso Mtsweni, appearing on behalf of the Minister of Police and the SAPS, argued that the Deputy Judge President’s court order created a special dispensation for O’Sullivan, but later pleaded ignorance of the document on behalf of the arresting officer Brigadier Ncube who was now facing the real possibility of being charged for deliberately ignoring the law he is tasked with upholding even after this was pointed out to him.

There was a fair amount of backtracking from state prosecutor Advocate Molathlwa Mashuga who had authorised the warrant of arrest for O’Sullivan even though he too had been shown a copy of the Deputy Judge President’s order on Sunday.

Earlier, Advocate Mashuga had said O’Sullivan would be charged with fraud, intimidation and extortion and will appear as a co-accused with Sarah Jane Trent who has been charged with impersonating an IPID officer. Trent will appear in the Pretoria Magistrate’s Court on Tuesday.

These are over and above the threatened charges of “treason” and “espionage” that are yet to be lodged.

The clearly intimidatory action by SAPS on Monday backfired as O’Sullivan was released just before midnight. He will now have to appear in court – at his own considerable cost – unlike those who are hounding him and who appear to have limitless access to state resources including lawyers and a convoy of vehicles and senior officers.

On Wednesday, if all goes well, IPID will report to Parliament’s police committee on its findings with regard to the finances behind the acting Commissioner’s R8-million home.

Meanwhile, it has once again been left to the country’s courts to force the application of the country’s laws.

If Acting Commissioner Phahlane was hoping to emerge triumphant after SAPS’ actions on Monday, he has instead been left with a bit of egg on his face. DM

Photo: Forensic investigator Paul O’Sullivan (Photo: Sally Shorkend); Acting Police Commissioner Kgomotso Phahlane (Photo: Leila Dee Dougan)