Spy tapes: the sequel
Evidence has come to light that it was suspended crime intelligence boss Richard Mdluli who produced the spy tapes that saved the career of acting prosecutions boss Nomgcobo Jiba – the person who will ultimately decide whether Mdluli goes on trial.
The full extent of Mdluli’s support of Jiba is laid bare in court papers that have been gathering dust in the Johannesburg Labour Court for three years.
City Press has obtained a full set of these papers, including transcripts of telephone conversations that were bugged by the police and provided to Jiba by Mdluli.
Mdluli is at the centre of a massive fallout in the country’s criminal justice system, which has also caused division in the governing tripartite alliance.
President Jacob Zuma and ANC secretary-general Gwede Mantashe have tried to downplay the issue, while Cosatu general secretary Zwelinzima Vavi formally requested Public Protector Thuli Madonsela this week to investigate Mdluli.
Judge Ephraim Makgoba barred the suspended crime intelligence chief from performing any policing duties on Wednesday, accepting that political interference may lead to Mdluli being reinstated again.
Last week suspended senior prosecutor Glynnis Breytenbach accused senior officials in the National Prosecuting Authority (NPA) of protecting Mdluli in papers filed with the Labour Court.
Jiba suspended Breytenbach shortly after receiving a memorandum from her on why a decision by Advocate Lawrence Mrwebi not to prosecute Mdluli should be overturned. Mrwebi heads the NPA’s serious commercial crimes unit.
Breytenbach was in charge of prosecuting Mdluli for fraud and corruption. Mrwebi instructed her to withdraw charges on grounds that the Hawks did not have authority to investigate intelligence funds.
The labour court papers filed by Jiba in 2008 add a new dimension to Mdluli’s apparent protection by the NPA.
They reveal an intimate working relationship between Mdluli and Jiba, and raise serious concerns over whether she is in a position to make decisions about Mdluli’s prosecution.
Jiba was suspended by then acting NPA head Mokotedi Mpshe in 2007 for assisting the police in its investigation and Hollywood-style arrest of state advocate Gerrie Nel, who was the lead prosecutor in the Jackie Selebi corruption case.
Numerous prosecutors refused to prosecute Nel because of a lack of evidence.
Mdluli, then the deputy police chief of Gauteng, was in charge of the investigation against Nel.
In Nel, Mdluli and Jiba found a common enemy.
In her disciplinary hearing charge sheet, the NPA stated that Jiba blamed Nel for the prosecution and incarceration of her husband, former Scorpions member Booker Nhantsi. “The official (Jiba) blamed Adv Nel for the fate of her husband and vowed to get back at him,” the NPA stated.
Nhantsi was convicted of theft in the Mthatha High Court in 2005 for stealing trust funds totalling R193 000.
Jiba allegedly obtained a copy of a court ruling that was critical of Nel’s evidence in an unrelated matter.
She took the ruling to the police (including Mdluli) “in an attempt to build a criminal case against Nel in a biased manner”.
Jiba denied this, saying she was contacted by Mdluli.
At the same time, the police launched Operation Destroy Lucifer, a counter-intelligence project to the Scorpions’ probe of Selebi. Part of the project was to get dirt on Nel and the Scorpions.
Curiously, Mdluli drove the investigation from his Johannesburg office, but appointed detectives from Potchefstroom – where he was previously based – to investigate and arrest Nel.
When Jiba went to the labour court, her main defender was Mdluli, who attached to his affidavit transcripts of an intercepted conversation between Scorpions boss Leonard McCarthy and the unit’s head of investigations, Thanda Mngwengwe.
Mdluli stated he received the intercepts from “another police officer” who was investigating drug dealings involving McCarthy. However, McCarthy was never arrested on drug charges.
Mdluli doesn’t mention if the interception was done lawfully.
In the intercepted conversation, McCarthy expresses his concern about the Nel investigation and says to Mngwengwe: “We’ve been played here, and this is all part of a strategy to unsettle the work that we do and to target certain people.”
He requests Mngwengwe to deal with the matter.
In his affidavit, Mdluli accused McCarthy and Mngwengwe of defeating the ends of justice by plotting to protect Nel. He says Jiba was the victim of an “illegal conspiracy” driven by a “gang of criminals in a Mafia-style operation designed and calculated to protect one of their own”.
Jiba lost the case, but was reinstated as a prosecutor after she reached an out-of-court settlement with Mpshe and Justice Minister Jeff Radebe.
Jiba’s career has blossomed under Zuma. In January last year the president promoted her to deputy head of the NPA and in December Zuma appointed Jiba as acting NPA head after Menzi Simelane was placed on special leave.
In September 2010 he expunged her husband’s criminal record.
The NPA’s Bulelwa Makeke responded: “We prefer to focus on finalising the internal disciplinary matter with Advocate Breytenbach urgently, and will not be drawn on any side issues at this sensitive stage, especially because there is also a labour court challenge currently under way.”
Nel was this week awarded by the International Association of Prosecutors for his work in the Selebi case.