‘Withdraw your team,’ NPA boss Menzi Simelane told top prosecutor after Bosasa briefing in 2010

The Competition Commission's Health Market Inquiry Director Clint Oellermann gives evidence at the Zondo Commission of Inquiry into State Capture, 1 April 2019. Screenshot: Youtube/SABC

By Jessica Bezuidenhout

2 Apr 2019

The former national director of public prosecutions Menzi Simelane dismissed the Bosasa case as ‘contaminated’, for multiple reasons, mere months after his appointment to the position.

In February 2010, three months into the job, former national director of public prosecutions Menzi Simelane told former senior prosecutor Glynnis Breytenbach to withdraw her team from the Bosasa case after the Special Investigating Unit had handed over the findings of its two-year investigation for criminal investigation and prosecution.

The exchange between Simelane and Breytenbach forms part of a series of documents that Bosasa allegedly bought from crooked NPA officials and which then gave the company a leg-up on every possible legal tactic available to crush the damaging criminal investigation into the company.

The documents contained updates and timelines on the criminal investigation, and revealed the identity of prosecutors, and one in particular, a memo by Simelane to Cabinet ministers Jeff Radebe and Nosiviwe Mapisa-Ngaqula.

The memo was laced with phrases implying racism on the part of investigators, that it was a witch hunt borne out of a political vendetta and that the investigation had been “contaminated”. In short, the prospect of a successful prosecution was “hopeless”.

All this made for useful ammunition for Bosasa’s politically supported fightback against prosecution over four tainted Correctional Services deals, the State Capture commission heard on Monday.

Testifying before Deputy Chief Justice Raymond Zondo, Clinton Oellermann, the former lead investigator of the SIU’s Bosasa case, said the leaked documents made for valuable information to attack the legal process and any subsequent prosecution that might have followed.

The Competition Commission's Health Market Inquiry Director Clint Oellermann gives evidence at the Zondo Commission of Inquiry into State Capture, 1 April 2019. Screenshot: Youtube/SABC

The NPA, in fact, sat on this case for a full 10 years — the first arrests were effected in February 2019, shortly after former Bosasa COO Angelo Agrizzi wrapped up his initial testimony before the commission.

Agrizzi had handed the leaked documents to the commission as part of his testimony into how the company had allegedly paid off NPA staff to extract information about the status of the case.

One of those accused of allegedly having aided Bosasa in its efforts is former NPA secretary Jackie Lepinka, who allegedly received R20,000 a month in exchange for information.

Minutes of Simelane’s extended briefing to Radebe, then the Justice minister, and Mapisa-Ngaqula, then the minister of Correctional Services, list Lepinka as among the attendees.

They show that Simelane told the March 2010 meeting that the Bosasa case held no water, that the SIU investigation had not been conducted with the proper administration of justice, without fear, favour or prejudice, essentially implying it had been a witch hunt, the commission heard.

Oellermann, a forensic investigator with more than 25 years of experience, told the commission that Simelane’s claims of a contaminated investigation were not true and not fair.

He said he and the roughly eight members of his team had no reason to pursue the company for invalid reasons and dismissed claims that it had been driven by a racial agenda.

Simelane’s memo had referred to two white investigators, but Oellermann said his team comprised men and women, both black and white.

The SIU investigation was triggered through a presidential proclamation issued in 2004 and extended in 2007.

The 2009 outcome was extremely damaging as it found, among other things, that the four Bosasa deals the team was permitted to investigate were all fraught with tender rigging and gratification to former Correctional Services boss, Patrick Gillingham.

Although the SIU had not been sufficiently advanced in investigating the involvement of former Correctional Services commissioner, Linda Mti, it had gathered enough evidence to flag him for further investigation by law enforcement.

The law requires the findings and recommendations of SIU matters to be handed to the NPA for further investigation and prosecution.

Asked about Simelane’s comments to the ministerial briefing, Oellermann questioned how Simelane could have come to have passed judgment on the admissibility of the SIU information as evidence so soon after the information was handed over to the NPA.

The commission heard that the two ministers were essentially told by Simelane that the prospect of a successful prosecution was “hopeless” and that the case should not be continued.

Oellermann testified that although Bosasa generally appeared to have had a heads-up on its investigation, all evidence was gathered within the confines of the SIU Act.

The company, for example, approached the SIU when it got wind of a plan to execute a search-and-seizure of digital equipment at the Bosasa offices.

Through their lawyers, Bosasa asked for a meeting to arrange a date for a digital and forensic mirror imaging of the company’s servers. Previous testimony has shed light on how Bosasa then delayed this search for about a week, during which thousands of files were deleted using special software.

Oellermann said the spread of documents that had landed up with Bosasa was not “random”, but a selection of effective material.

They were distinct in that they provided insight into gaps in the criminal investigating process and allowed Bosasa to track the different stages of the investigation.

The SIU report, handed to the NPA in 2009, gathered dust until Agrizzi hit the witness stand at the State Capture Commission.

He was arrested along with several former colleagues (witnesses at the commission) as well as Gillingham and Mti.

They face charges of fraud, corruption and money laundering and are all out on bail.

The now decade-old report found wrongdoing across a wide spectrum of four contracts, commonly referred to as Bosasa’s kitchen deal, a CCTV deal, a fencing deal and one for the installation of TV sets in inmate cells.

The investigation found the contracts were irregularly awarded by Correctional Services, in some cases with the help of Gillingham, who had worked with Bosasa to develop tender specifications in exchange for cash or other gratuities.

Bosasa’s corrupt spree didn’t end at the first sign of trouble in 2009. The company continued doing business with the government until recently and previous testimony by Agrizzi has exposed a massive R70-million-a-year kick-back scheme for deals, extensions of contracts and political cover against criminal investigations that allegedly ran all the way to the office of former president Jacob Zuma.

Justice Zondo told Oellermann that he had asked the commission’s team to establish what gave rise to the recent arrest of Agrizzi and some of the other witnesses.

He wants to examine the reason for their arrests in view of the timing thereof, and because they are currently assisting the commission.

Justice Zondo says he has been assured the arrests were not linked to their appearance before the commission and, strangely, not in connection with the now-dated SIU report.

But Oellermann said that his analysis of the draft charge sheet shows that apart from one or two additions, the arrests appear to relate, in the main, to the 2009 case.

Oellermann said he did not have an explanation for why there was such a delay in effecting the arrests.

Under normal circumstances, certain procedural processes would need to be triggered in order for dockets to be opened and for the actual charging of the suspects.

“That may have taken some time, but 10 years? I have never encountered a criminal investigation of this nature that has taken this long,” Oellermann said.

Leading his evidence, senior advocate Paul Pretorius said:

“The evidence was fairly concentrated, reasonably clear. And, in light of the quality of the evidence and the nature of the findings, can there be any rational basis for a 10-year delay?”

“In my opinion, no,” said Oellermann.

The commission resumes on Tuesday with testimony by commission investigator Patrick Mlambo and the return of former Bosasa employee Richard le Roux, about the Bosasa-funded security installations at the homes of top ANC politicians and former SAA chairperson Dudu Myeni. DM

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