IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case no: 49791 /18 In the matter between: FRANCINAH NTOMBENHLE VUMA LEBEONA JACOB TSUIIANE First Applicant Second Applicant KHEHLA JOHN SITOLE Third Applicant BONGANI MBINDNANE Fourth Applicant and THE EXECUTIVE DIRECTOR: INDEPENDENT POLICE INVESTIGATIVE DIRECTORATE THE MAGISTRATE: PRETORIA MAGISTRATES COURT First Respondent Seco nd Respondent AND In the counter-application of: THE EXECUTIVE DIRECTOR: THE INDEPENDENT POLICE INVESTIGATIVE DIRECTORATE Applicant and FRANCINAH NTONIBENHLE VUMA LEBEONA JACOB TSUMANE First Respondent Second Respondent KHEHLA JOHN SlTOLE Third Respondent BONGANI MBINDWANE Fourth Respondent FIRST RESPONDENT'S COUNTER-APPLICATION: NOTICE OF MOTION TAKE NOTICE that the first respondent intends to make application to this court at the hearing of the matter for an order in the following terms: 1. The refusal or failure of the third applicant (in the main application), in his capacity as the National Commissioner of the SAPS, to declassify the documents requested by IPID for the purposes of its investigations in Brooklyn CAS 565/11/201? and IPID CCN201801052?, and required under the subpoenas issued against the applicants by the second respondent on 22 May 2018, is reviewed and set aside. 2. The documents referred to in paragraph 1 are declassified for the purpose of IPID's investigations and any consequent prosecution(s). 3. It is declared that the first to third applicants (in the main application) have breached their duties under sections 4(2) and 29(2) of the IPID Act by failing to furnish IPID with the information and documents it requested for the purposes of its investigations. 4. The costs of this application are to be paid by the first to third applicants. 5. Further and/or alternative relief. TAKE NOTICE that the accompanying affidavit of MR ROBERT MCBRIDE and the annexures thereto will be used in support hereof. TAKE NOTICE FURTHERthat if you intend opposing this application you are required (a) to notify the first respondent's attorney in writing within 5 days of service of this Notice; (b) within 15 days after you have so given notice of your intention to oppose the application, to file your answering affidavits, if any; and (c) to appoint in such notification an address referred to in Rule 6(5)(b) at which you will accept notice and service of all documents in these proceedings. TAKE NOTICE FURTHER that the first respondent has appointed ADAMS 8 ADAMS as its attorney of record and the address at which they will accept service of notices and other processes in these proceedings is Lynnwood Bridge, 4 Daventry Street, Lynnwood Manor, Pretoria. DATED at PRETORIA on this 18" day of DECEMBER 201 6 J S AR A I S A ADAM S st Respondent's Attorneys nnwood Bridge Office Park Daventry Street Lynnwood IVIanor PRETORIA TEL: (012) 432 6000 FAX: (012) 4326599 Email: 'ac.marais©adamsadams.com thando.manentsa© adamsadams.com REF: JSM/TMD/mnn/LT4095 TO: AND TO: THE REGISTRAR OF THE HIGH COURT PRETORIA MKETSU AND ASSOCIATES INC ATTORNEYS Applicant's Attorneys Suite 627, Van Erkom Building 217 Pretorius Street Pretona Ref: LP0086/SS MKETSU/JN Cell: 083 3977 473 Tel: 012 321 0149 Email: dw ell© mketsu.co.za THE STATE ATTORNEY Second Respondent's Attorneys 316 Thabo Sehume Street Cnr Francis Baard and Thabo Sehume Street Pretoria Ref: 4683/18/Z46 Tel: 012 309 1628 Fax: 086 507 0293 Emai: esn mangw'ustice. ov.za IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case no: 49791 /1 8 In the matter between: First Applicant FRANCINAH NTOMBENHLE VUMA LEBEONA JACOB TSUMANE Second Applicant KHEHLA JOHN SITOLE Third Applicant BONGANI MBINDWANE Fourth Applicant THE EXECUTIVE DIRECTOR: INDEPENDENT POLICE INVESTIGATIVE DIRECTORATE THE MAGISTRATE: PRETORIA MAGISTRATES COURT First Respondent Seco n d Respondent AND In the counter-application of: THE EXECUTIVE DIRECTOR' THE INDEPENDENT POLICE Applicant INVESTIGATIVE DIRECTORATE and FRANCINAH NTOMBENHLE VUMA LEBEONA JACOB TSUMANE First Respondent Second Respondent KHEHLA JOHN SITOLE Third Respondent BONGANI MBINDWANE Fourth Respondent FIRST RESPONDENT'S ANSWERING AFFIDAVIT AND FOUNDING AFFIDAVIT INTHE COUNTER-APPLICATION I, the undersigned, ROBERT INCBRIDE state under oath as follows: I am the Executive Director of the Independent Police Investigative Directorate ("IPID") and the first respondent. I depose to this affidavit in my official capacity, as the head of IPID. 2 Th e facts contained in this affidavit are within my personal knowledge, unless the context indicates otherwise, and are true and correct, to the best of my knowledge and belief. 3 Wh e re I make submissions on the law, I do so on the advice of IPID's legal representatives. 4 F o r convenience, I refer to the parties throughout as in the main application. OVERVIEW OF THE ANSNER 5 T h e crux of the applicants' case is that the application and issuance of the subpoenas was unlawful because the information and documents they are required to produce under the subpoenas is "intelligence informafion that might compromise the national security and the identities of the operatives of the intelligence community".' 6 T h e applicants contend that such information and documents can only be sought from, and disclosed by, the Joint Standing Committee on Intelligence (hereafter "the JSCt"), and that the disclosure of such information to any other person is prohibited by section 5(2) of the Intelligence Oversight Act.2 7 IP I D disputes these contentions for the following reasons. First, IPID denies that the requested information and documents constitute intelligence information" and that their disclosure might compromise national security. The information and documents pertain to the suspected commission of crimes, specifically tender fraud. 8 T h e a l leged "classified documents" have been unlawfully and improperly classified to cover up the commission of suspected crimes. The Minimum Information Security Standards (" MISS" ) — the national information security policy that governs the classification of information in the national interest and which applies to all state institutions and departments~ -stipulates that "Security measures are not i ntended and should not b e a pplied to c over up maladministration, corruption, criminal actions, etc. or to protect indIvidualal officials involved in such cases" (definition of "classification", chapter 2, paragraph 3.4). I attach a copy of the relevant part of the MISS marked"RJM1". ' FA para 10. ' Prayer 5, readwith FAparas 41 Q5 especially. 3Adopted by Cabinet on 4 December 1998. 9 Se c ond, the applicants' interpretation of the legal scheme is also incorrect. Section 5(2) of the Intelligence Services Oversight Act 40 of 1994 does not mean that intelligence information can only be sought from and disclosed by the JSCI. The role of the JSCI is oversight of the intelligence agencies, not the declassification of documents. 10 Section 5(2) means only that information obtained by the persons governed by the Act — namely, the members of the JSCI and the Inspector-General of Intelligence — may not disclose any intelligence information that they obtain in the performance of their functions subject to the exceptions and conditions in the provision. 11 T hird, even if the requested information and documents were "intelligence information" and properly classified (which they are not), such information and documents can lawfully be disclosed to a person with the requisite security clearance. IPID investigators are required under the IPID Act to have security clearance, obtained from the National intelligence Agency (now a branch of the State Security Agency). 12 In a letter dated 14 June 2018, IPID proposed that the applicants hand over the requested documents to a member of IPID who has top secret security clearance, and IPID undertook not to use or disseminate the documents in a manner that would infringe upon the classification of the documents, pending the determination of the present application. This proposal was rejected by the applicants. I attach IPID's letter and the applicants' response as annexures "RJIN2"and "RJM3". 13 In what follows, I begin by setting out the factual background to this litigation in more detail. I describe: 13.1 I PID's investigation; 13.2 The reasons for IPID's requests for information and documents; and 13.3 The requests made to the applicants and their responses thereto. 14 I then address the relevant legislative framework — namely, the IPID Act and the Intelligence Services Oversight Act on which the applicants rely. 15 I t hen answer the allegations in the founding affidavit that require a specific response. 16 I conclude by addressing the basis and need for IPID's counter-application. IPID'SINVESTIGATION OF SUSPECTED FRAUD AND CORRUPTION INVOLVING SAPS MANAGEINENT AND 1-VIEW 17 I PID is currently conducting three investigations of suspected fraud and corruption involving SAPS management and a company called Brainwave Projects 1323CC, trading as I-View Integrated Systems with registration number CK 2005/1 25830/23 ("I-View" ). IPID refers to these cases as "I-View I", "I-View II" and "I-View III". 18 IPID investigator and assistant director, Mr Antony Sehas and IPID investigator, Mr Khuba were appointed as the investigators in the I-View cases. 19 The subpoenas at issue relate to I-View I and I-View II. 20 I- V iew I Brookl C AS 565/11/2017is an investigation into suspected fraud and corruption and gross irregularities in procurements by the SAPS Crime intelligence Division of goods and services from I-View between 20 December 2016 and 31 March 2017. It is estimated that the state suffered a loss of R54 million as a result of these procurements. 20.1 I P ID's investigations revealed that, during the the 'Fees Must Fall' protests in December 2016, SAPS Crime Intelligence paid I-View a sum of R33 million for software aimed at monitorin g socialm edia sites,known as "RIP JAR software". 20.2 N e ither the normal nor emergency tender processes were followed for the procurement, and no application was made for departures from the prescribed procedures 20.3 O nly two quotations were obtained for the RIPJAR software — one was obtained from I-View. The other quotation was obtained from a company called Perfect Source Solutions, whose director is the wife of I-View's sole director. The quotations should have been sourced by the user in SAPS Crime Intelligence, being the SAPS Crime Intelligence: Cyber Unit (headed by Colonel H.K. Smith). Instead, the quotations were sourced by an officer in the SAPS Crime Intelligence IT department, Colonel Mahwayi. 20.4 Q uotations were received on 20 December 2016, and two days later, on 22 December 2016, the amount quoted by I-View, of R33 million, was transferred to I-View from SAPS Crime Intelligence. 20.5 The payment wasmade before any agreement had been concluded with I-View. The service level agreement was seemingly drawn up and signed between SAPS Crime Intelligence and I-View on 23 December 2016 — the day after the payment was processed. 20.6 T h ere is no evidence that the service was ever rendered by I-View. There is no evidence that the RIP JAR software was ever installed on the SAPS Crime Intelligence systems. 20.7 D uring or about November or December 2016, SAPS Crime intelligence also procured from I-View a system known as "Daedalus" to encrypt cellular phone communications, for an amount of R21 million. Daedalus encrypts user-SMSes and calls, to block surveillance. 20.8 I PID has reason to believe that the Daedalus system was obtained specifically to block IPID's surveillance of the cell-phone communications between the former National Commissioner, Lt-General Phahlane and a team of SAPS detectives from the North West province (led by Major General Jan Mabula), which Lt-General Phlalane appointed to counter and obstruct IPID's investigation against him for alleged fraud and corruption. 20.9 IPID's investigations revealed that procurement processes weres im ilarly flouted in the SAPS' procurement of the Daedalus system and that the SAPS paid an inflated price for the Daedalus system. Only two quotations were again obtained for the procurement of the Daedalus system, one from I-View and the other from Perfect Source Solutions. IPID is advised that Perfect Source Solutions is not a recognised supplier of the Daedalus system. 20.10 Further, at all relevant times, I-View was under business rescue proceedings but did not inform its business rescue practitioner of this transaction. In terms of section 140(1)(a) of the Companies Act 71 of 2008 (the Companies Act) the business rescue practitioner, has full management control of the company in substitution of the company's board and pre-existing management. For this reason too, SAPS should have not conducted any business with I-View. 20.11 On 10 October 2017 I wrote a letter to the National Commissioner of Police and to the Minister of Police, informing them that I-View was suspected of being involved in a corrupt relationship with Major General Nemutanzhela, Major General Makhele and Lt General Phahlane of the SAPS, and that the they should direct that all contracts with I-View be provided to the Directorate. I attach the letter as annexure "RJII4". 21 I- View II (IPID CCN 2018010527) is an investigation into the initiated, but aborted, attempt by SAPS Crime Intelligence, in December 2017, to illegally obtain money through the procurement from I-View of a cellphone grabber at a grossly inflated price of R45 million. The grabber system is available on the market for between R7 million and R10 million. It is suspected that the money paid under this procurement (from SAPS Crime Intelligence to I-View) was to be laundered for the buying of votes at the ANC's 54'" national elective conference, held in Johannesburg from 16 to 20 December 2017. The illegality of this procurement process is confirmed by the statements of Brigadier Hlungwane and Brigadier Chilli, which are attached as annexures "RJM5" and "RJM6" 22 O n 14 December 2017, IPID received a tip-off that the transaction of R45 million, from SAPS Crime Intelligence to I-View, was being processed. I refer to the sworn statement of Mathews Sesoko (annexure "RJM7 *') who states in paragraphs 4 that: "On or about 14 December 2017, I was informed by Mr Khuba that he received information from a source that General Ngcobo the acting Divisional Commissioner of Crime Intelligence (C/) had approached Brigadier Chilli of CI Legal Service to recommend the procurement of a grabber of about R45 million and that the money was needed, allegedly to be laundered to buy votes at the 54'" ANC conference." 23 I PID subsequently obtained video footage of a meeting held on 13 December 2017 in the Courtyard Hotel in Pretoria. IPID learned from a reliable source that the purpose of the meeting was to discuss the "emergency procurement" of the cellphone grabbing device at the bloated amount of R45 million. Those at the meeting included the service provider, Mr Inbanathan Kistiah of I-View, the fourth applicant, Mr Mbindwane (then the advisor to the Minister of Police, Mr Fikile Mbalula) and SAPS seniormanagement, specifically, the first to third applicants, Lt-General Vuma, Lt-General Tsumane and General Sitole, as well as the Acting Division Comm issioner: SAPS Crime Intelligence, General Bhoyi Ngcobo. 24 I PID engaged a number of SAPS senior officials, who confirmed that the transaction was being pushed through by the applicants and General Ngcobo, and was causing in a strained relationship amongst senior members. Neither the normal tender processes nor emergency procurement processes were followed, and no application for deviation was made for the procurement. 25 S enior members of the SAPS Crime Intelligence, Brigadier Hlungwane and Brigadier Chilli, advised IPID's investigators that no need existed for the procurement of the device and that no needs analysis was conducted by the commander of the Crime Intelligence Cyber Unit responsible for procuring the device, headed by Colonel H K Smith. IPIO was advised that Colonel H K Smith was never even informed of the procurement. IPID therefore reasonably suspects that this was an unlawful attempt to steal public money through a rigged procurement process. 26 Qn 15 December 2017, IPID contacted the National Commissioner, General Khehla Sitole and recommended that the payment be stopped with immediate effect. Following IPID's recommendation, General Sitole stopped the processing of payment to I-View. 27 l- lew III relates to the procuremenl of bullet proof vesta from I-View at a grossly ~ inflated price of R33 000.00 per bullet proof vest. The market price for bullet proof vests is between R5000 and R10000 per vest. 10 IPID'S REQUESTS TO T HE APPLICANTS FO R INFORMATION A N D DOCUMENTS AND THE APPLICATIONS FOR SUBPOENAS I-View I 28 I PID has tried, unsuccessfully, to obtain the documents relating to the RIP JAR software and Daedalus systems procured by SAPS Crime Intelligence between December 201 6 and March 2017. 28.1 O n 23 January 2018, IPID requested the SAPS to declassify documents pertaining to I-View 1. IPID also sought the data that the SAPS Crime Intelligence Cyber Unit had downloaded from the computers and cellular phones of Lt-Col Mahwayi. Colonel Mahwayi is based in the SAPS Crime Intelligence IT Department, a unit that has nothing to do with procurement for SAPS Crime Intelligence. It appears that Colonel Mahwayi was responsible for identifying "the need" for the RIPJAR and Daedalus systems, and personally contacted I-View to obtain quotes for the systems, T his letter is attached as annexure"RJMS". 28.2 O n 3 1 January 2018, IPID was advised in a letter from Lt. General Tsumane of the SAPS that the documents relating to this investigation were in the possession of the Inspector General of Inteiligence. This letter is attached marked "RJM9". Lt-Gen. Tsumane wrote: "As the relevant documents relating to the I-Viewinvestigation are in the possession of the Inspector General of Intelligence, the Office of the Inspector-General of Intelligence has been requested to make available all documents relating thereto for purposes of reclassification." 28.3 I responded to this letter on 14 February 2018. I advised that IPID was not willing to accept any further delays, and that failure to comply with IPID's request would result in IPID invoking the criminal sanctions under section 33 of the IPID Act. I attach this letter marked "RJNI10". 28.4 I PiD proceeded to approach the Inspector General of Intelligence (the "IGI"), Dr Dintwe, for the documents. The IGI advised IPID that, under the MISS, the person vested with the authority to declassify the requested documents was the author of the document or the head of the institution that classified the documents — i.e., the National Commissioner of the SAPS or the Divisional Commissioner of the SAPS Crime Intelligence Unit. At IPID's request, the IGI undertook to advise the Minister of Police of his views on the classification of the documents and to prevail upon the Minister to have the documents declassified by the appropriate authorities. I attach the letter marked "RJM14". 28.5 O n 5 April 2018, the IGI addressed a letter to the Minister of Police (Mr Cele) regarding the declassification of the I-View documents, attached as "RJM12". The IGI wrote: "2.1 I am of the opinion that the information requested by the IPID relating to procurement of IP Solution (known as Ripj ar and Oaedullus) (sic] does not have the potential to harmfully impact on the national security. The documents do not relate to any intelligence operation but only to the procurement of the aforesaid IT systems. 12 2.2 Th e D i visional Commissioner and/or t h e N a tional Commissioner may be requested to consider declassification of the requested documents and further requested to do the necessaries to ensure further diligent handling of the documents." 28.6 Despite the IGI's advice, the National Commissioner (the third applicant) and the Divisional Commissioner of the SAPS Crime Intelligence, Major- General Ncobo (who is the former head of crime intelligence) and MajorGeneral Peter Jacobs (who is the present head of crime intelligence) have failed to declassify any of the documents pertaining to the procurement of the RIPJAR and Daedalus systems. 29 The failure of the SAPS National Commissioner to furnish IPID with the requested documents caused IPID to apply for a subpoena directing General Sitole to produce the documents. The application was made to the Magistrate' s Court, Pretoria on 10 May 2018. The application appears only in part in annexure "SAP 7(e)" to the founding affidavit. 30 The application was supported by the affidavit of the IPID investigator, Mr Sehas, deposed to on 22 February 2018, which is attached hereto marked "RJM13". Mr Sehas stated, inter alia, as follows: "... During preliminary investigations it was established that there fwasj gross irregularity in the procurement process resulting in the state suffering a possible loss of more than R33 000 000.00. lt was found that tender processes were not correctly followed and no proper application was made. Qnly two quotations were obtained from companiesof which t, he directors are allegedly husband and wife The . quotation was not sourced by the user within Crime Intelligence but by anindividual who had nothing to do with the service. Two days later, the money was allegedly transferred to the bank account of I-View I ntegrated Systems without any contract being drawn up. O n 2 3 December 2016, one day after the payment was done, the service level agreement contract was drawn up and signed between the service provider and Crime Intelligence. This can also not be confirmed if the document was signed later and backdated. This practice is irregular within the SAPS procurement processes and is in contravention of the Public Finance Management Act. The Procurementis found to be highly irregular as no proper application for procurement (wasJ made, the period between the quotation and the payment (was J two days. It is also very irregular that the payment from SAPS to the supplier would be made before the actual service level agreement was signed. There is also no indication that the service was ever rendered by I-View Integrated System." 31 T he subpoena was issued against General Sitole on 21 May 2018. As appears from the annexure to the subpoena (at page 55 of the papers), IPID requires the National Commissioner to declassify and provide the following documents to lPID: Submission of the identification of needs for the procurement of RIPJAR and DAEDALUS systems. 2. Tender numbers and specifications regarding the procurement of RIPJAR and DAEDALUS systems. 3. Tender box opening registrations confirming names of all the bidders who submitted their bids. 4. Copies of the bid documents submitted by bidders. 14 5. Information notes and the minutes of the Bid Evaluation Committee and the outcome of the committee meeting. 6. AII tender documents relating to Brainwave Projects 1323 cc trading as I-View Integrated Systems and Perfect Source Professional Services for the period 1 June 2015 to 31 December 2017. 7. All proof of payment and contract documents for all services rendered by I-View Integrated Systems and Perfect Source Professional Services to SAPS. 8. All documents relating to the purpose and utilization of the RIPJAR and DAEDALUS systems and if the systems are still in use. 9. All documents seized by the Inspector-General; Intelligence at Crime Intelligence during an operation conducted with IPID on 14 November 2017 as well as the download of all computers, laptops and cellphones that was conducted by Col Smith of Crime Intelligence." I-View Il 32 A s detailed above, IPID began investigating I-View ll in mid December 2017, after receiving a tip-off on 14 December 2017. After preliminary investigations, IPID investigators determined it necessary to interview those present at the Courtyard hotel meeting of 13 December 2017, to ascertain the reasons for the meeting and whether it r elated to th e s uspected fraudulent attempted procurem ent ofthe cellphone grabber system. 33 On 13 February 2018, I addressed letters to each of the applicants and General Ngcobo, requesting them to attend at IPID's offices for an interview on 15 15 February 2018, to establish the facts pertaining to the meeting of 13 December 2017.4 33.1 The letters advised that IPID was investigating a case of fraud, and that its investigation required IPID to establish the facts of the meeting relating to the suspected fraud. 33.2 The letters also advised the SAPS members of their duties to cooperate with IPID's investigations under section 29(2) of the IPiD Act, and that obstructing an investigation was a criminal offence under section 33 of the IPID Act. 33.3 Th e letters sent to the applicants are attached to Mr Vuma's founding affidavit as annexures SAP 1(a) to SAP 1(d). An identical letter was also sent to General Ngcobo. 34 On 14 February 2018, Lt-General Khan, the SAPS Divisional Commissioner: Legal and Policy Services, advised that Lt-Generai Tsumane and Mr Mbindwane were "willing to cooperate" but were not available to attend for the interviews the following day and that they wanted to apply for legal representation. That letter is attached as "SAP2" to the founding affidavit. 35 I r esponded the following day. I advised Lt-Gen Khan that all three SAPS members and Mr Mbindwane were expected to attend for the interviews immediately upon their return, and that there was no need for legal 4At the time, 1PID suspected that a prior meeting between the same persons was also convened at the same hotel on 25 August 2017, but it transpired on further investigation that this was not the case. 16 representation as the interviews were for investigation purposes only, and interviewees are statutorily protected against self-incrimination. My response is annexure "SAP3" to the founding affidavit. 36 O n 13 March 2018, the applicants' legal representative, Mr Mketsu, advised IPID that he was instructed to represent and assist them in preparing for the interviews. Mr Mketsu requested "full and further detail of the alleged facts" that would be the subject of the interviews. He advised that, upon receipt of that information, he would arrange his clients; attendance at the necessary interviews. That letter is annexure "SAP4" to the founding affidavit. 37 I responded to Mr Mketsu in a letter dated 20 March 2018.' I advised him that the details of the requested interviews were clear from IPID's previous letters to his clients. I further advised that should the applicants fail to present themselves to IPID's offices on or before 27 March 2018, IPID would have no option but to invoke the criminal sanctions in section 33 of the IPID Act. That letter is "SAP5" to the founding affidavit. 38 O n 26 March 2018, Mr Mketsu advised IPID that his clients would not make themselves available for the requested interviews. He advised that his clients' position was that their meetings relate to "issues that falls within the ambit of the National Strategic Intelligence Act 39 of 1994 and its regulations", and that in terms of that act, they "cannot answer any questions from any body or institution other than the Joint Standing Committee on Intelligence". Mr Mketsu also noted Signed and sent on 22 March 201 8. 17 that the National Commissioner had referred the matter to the JSCI and invited IPID to address its concerns to that structure. That letter is annexure "SAP6" to the founding affidavit. 39 I n light of the applicants' refusal to attend at IPID for the requested interviews, IPID proceeded to apply to subpoena the applicants to do so. The application was made on 10 May 2018, supported by the affidavit of Mr Sehas attached marked "RJM14" which again makes it clear that the procurement was merely a ploy to unlawfully obtain money. Mr Sehas stated, inter alia, as follows: "On 13 December 2017, a meeting was held at the Courtyard Hotel clo Hill and Park Streets, Arcadia, Pretoria. Present at the meeting were senior members of SAPS Crime Intelligence Division, top management of SAPS, the Police Minister's adviser and the owner of a company called Brainwave Projects 1323CCtrading as IView Integrated Systems. This practice is highly irregular for the Minister's advisor to attend a procurement meeting with SAPS management and this has raised suspicions. During preliminaiyinvestigations and after receiving reliable information, it was established that the purpose of the meeting was to discuss the emergency procurement of a cellphone grabbing device at a bloated amount of R45 000 000.00. The device would cost around R7000000.00 through normal procurement processes from other service providers. Further information indicated that no need existed for the emergency procurement of the device and no needs analysis was conducted by the commander of the unit responsible for procuring such devices. He was also neverinformed. It is clear that neither normal tender processes nor emergency procurement processes were followed and no proper application was made. This practice is highly irregular within the SAPS procurement processes and is in contravention of the Public Finance Management Act. Video footage of al/ the members present at the meeting was already obtained from the hotel. After they became aware of the probe by IPID they abandoned the procurement process and a few days later media reported on the (attempted J fraud and corruption...." 40 The subpoenas were issued by the Magistrate on 22 May 2018, and are attached to the founding affidavit as annexures SAP8(a)-(d).' 41 U nder the subpoenas, the applicants are required to declassify any documents before handing them to IPiD and are directed"1. To report to the IPID National Office to be interview and submit a sworn statement explaining the following: 1.1 Who invited him for her J and what was his (or her J involvement in the meeting of 13 December 2017; 1.2 Names of all the people that attended the meeting; 1.3 The reason for the meeting; 2. Copies of all the documentsin his (or herJ possession that pertains to the procurement as well as needs analysis for such procurement or any The tncorrect annexure to General Sttole's subpoena ts attached at SAP (c) — that ts tha annexure to the subpoena issued for IPID's I-View I investigation, not I-View II. 19 other documents related to the procurement as well as any attendance lists that was completed by all attendees." THE LEGAL FRAMEWORK 42 I n this section, I briefly address the relevant laws. I first address the IPID Act and then the laws governing intelligence information and classified documents. The meaning and import of these laws will be addressed in argument, as is appropriate. However, given the applicants' evident misunderstanding of the applicable laws, I deal with them, albeit summarily, in this affidavit. The IPID Act 43 I PID is an independent institution required by the Constitution to investigate misconduct and offences committed by the police. Section 206(6) of the Constitution requires the establishment by nationallegislation of an "independent police complaints body" that "must investigate any alleged misconduct of, or offence committed by, a member of the police service in the province". IPID is that body, established under section 3 of the IPID Act. 44 U nder section 28 of the IPID Act, IPID is charged with investigating the following: "(1) The Directorate must investigate- (a) any deaths in police custody; (b) deaths as a result of police actions; (c) any complaint relating to the discharge of an oNicial firearm by any police of'ficer; 29 (d) rape by a police officer, whether the police officeris on or off duty; (e) rape of any person while that person isin police custody; (fl any complaint of torture or assault against a police officer in the execution of his or her duties; (g) corruption matters within the policeinitiated by the Executive Director on his or her own, or after the receipt of a complaintfrom a member of the public, or referred to the Directorate by the Minister, an MEC or the Secretary, as the case may be; and (h) any other matter referred to it as a result of a decision by the Executive Director, or if so requested by the Minister, an MEC or the Secretary as the case may be, in the prescribed manner. (2) The Directorate may investigate matters relating to systemic corruption involving the police." 45 i P ID's investigators are given extensive investigative powers under section 24, which provides, in relevant part: "(2) Aninvestigator has the powers as provided forin the Criminal Procedure Act, 1977 (Act 51 of 1977), which are bestowed upon a peace officer or a police official, relating to(a) the investigation of offences; (b) the ascertainment of bodily features of an accused person; (c) the entry and search of premises; (d) the seizure and disposal of articles; (e) arrests; (f) the execution of warrants; and (g) the attendance of an accused person in court. (8) (a) For the purposes of conducting an investigation, an investigator may direct any person to submit an affidavit or affirmed declaration or to appear before him or her to give evidence or to produce any document in that person's possession or under his or her control which has a bearing on the matter being investigated, and may question such person thereon. (b) An investigator or any person duly authorised thereto by him or her may request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on a matter being or to be investigated. (4) A person questioned by an investigator conducting an investigation must answer each question truthfully and to the best of that person's abi%ty, but- (a) a person is not obliged to answer any question if the answer is selfincriminating; and (b) the person asking the questions mustinform that person of the right set out in paragraph(a). (5) No self-incriminating answer given or statement made by any person to an investigator exercising powers in terms of this Act will be admissible as evidence against that person in criminal proceedings instituted against that person in any court, except in criminal proceedings for periury. 46 To enable the performance of their functions, IPID members and investigators are required to undergo a security clearance by the National Intelligence Agency, as contemplated in section 3 of the Intelligence Services Act 65 of 2002. 46.1 Sections 8(3) to (8) provide that a person may not be appointed as a member of IPID's national oNceunless information with respect to that person has been gathered in a n a ppropriate security screening investigation as prescribed by the Minister and done in conjunction with the National Intelligence Agency. That member must then be issued with a security clearance certificate, and may be subjected to further security screening from time to time. If any such member's security clearance certificate is withdrawn, that person must be discharged from IPID. 46.2 S ection 8(5) specifically provides that it is the Executive Director of IPID that "must issue a security clearance certificate" upon the successful conclusion of a security clearance by the State Security Agency. 46.3 S ections 22(3) to (7) provide that a person may not be appointed as an investi ator unless information with respect to that person has tteen ~ gathered in an appropriate security screening investigation as prescribed by the Minister and done in conjunction with the National Intelligence Agency. The investigator must then be issued with a security clearance certificate, and may be subjected to further security screening from time to time. If an investigator fails to conform to the security clearance prescripts, that person must be discharged from his or her position as an investigator. 47 Section 4(2) imposes a general duty on all organs of state to assist IPID in the performance of its functions. It provides: 23 "Each organ of state must assist the Directorate to maintain its impartiality and to perform its functions effectively". 48 S ection 29 imposes further, specific duties on members of the SAPS of reporting and cooperation with IPID. It provides that: "(1) The Station Commander, or any member of the South African Police Service or Municipal Police Service must- (a) immediately after becoming aware, notify the Directorate of any matters referred to in section 28(1) (a) to (f); and (b) within 24 hours thereafter, submit a w ritten report to the Directorate in the prescribed form and manner of any matter as contemplated in paragraph(a). (2) The members of the South African Police Service or Municipal Police Services must provide their full cooperation to the Directorate, including but not limited to- (a) the arrangement of anidentification parade within 48 hours of the request made by the Directorate; (b) the availability of members for the taking of an affidavit or an affirmed declaration or to give evidence or produce any document in that member's possession or under his or her control which has a bearing on the matter being investigated; and (c) any otherinformation or documentation required forinvestigation purposes." 49 Under section 33(1) of the IPID Act, it is an offence for any person or entity to interfere, hinder or obstruct the Executive Director or any member of IPID in the exercise or performance of his or her powers or functions, punishable by a fine or imprisonment of up to two years. Under section 33(3), any police officer who fails to comply with section 29 is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years. 50 The above provisions of the IPID Act impose a clear and unconditional duty on the SAPS to assist IPID in its investigations, including by giving evidence and furnishing IPID with the information and documents that IPID requires in its investigations. These duties have been repeatedly breached by the applicants in responding to IPID's I-View investigations. The Intelligence Services Oversight Act 51 The applicants rely on section 5(2) of the Intelligence Services Oversight Act 40 of 1994 to contend that the subpoenas issued against them were unlawful since only the Joint Standing Committee on Intelligence (JSCI) can provide the requested information and documents. 52 The applicants have misinterpreted this Act. As appears from its very title, the A W ~h " i I Ih i I'li•l i bye JSC~I, Tt A • not empower the JSCI to take operational decisions on intelligence matters or to assume the responsibility for the declassification of documents. 53 The objects of the Act are described in the preamble: "To provide for the establishment of a Committee of Members of Parliament on Intelligence and to define its functions; and for the appointment of Inspectors General of Intelligence and to define their functions; and to provide for matters connected therewith." 54 The Joint Standing Committee on Intelligence is established under section 2 of the Act. Its mandate is defined in section 2(1) as being: "to perform the oversight functions set out in this Act(a) in relation to the intelligence and counterintelligence functions of the Services, which include the administration, financial management and expenditure of the Services; and (b) in respect of the administration, financial management and expenditure of the Office fof the Inspector General of Intelligence), and report thereon to Partiament." 55 The functions of the JSCI are further defined in section 3 of the Act. These provisions confirm that the JSCI's primary function is that of oversight (of the performance and budgets of the intelligence agencies). The JSCI is also tasked with reviewing and making recommendations on the legislation and regulations that govern the i ntelligence services and "r e garding interdepartmental cooperation and the rationalisation and demarcation of functions relating to intelligence and counterintelligence between the Agency, the National Defence Force and the South African Police Service". The JSCI may also order an investigation and report from the head of an intelligence service or the Inspector General if it receives acomplaint from any member of the public about prejudicial acts by the intelligence services. 56 None of these provisions authorises, let alone requires, the JSCI to declassify documents or to determine whether to grant any person access to intelligence information sought from any institution or person (other than the JSCI or a member of the JSCI). 26 57 Section 5(2) of the Act (on which the applicants rely) reads in context as follows: "5 Secrecy (1) The Committee shall conduct its functions in a manner consistent with the protection of national security. (2) No person shall disclose any intelligence, information or document the publication of which is restricted by law and which is obtained by that person in the performance of his or her functions in terms of this Act, except(a) to the extent to which it may be necessary for the proper administration of any provision of this Act; (b) to any person who of necessity requires it for the performance of any function in terms of this Act; (c) with the written permission of the chairperson, which permission may be given only with the concurrence of the Head of a Service and the Inspector General; (d) as prescribed by regulation." 58 S ection 5(2) does not impose "a total prohibition on anyone, including IPID"from g etting access to any intelligence information, as the applicants contend. It imposes only a duty of secrecy and non-disclosure on members of the JSCI itself, who receive access to intelligence information in the performance of their functions under the Act. 59 The applicants' interpretation is not only inconsistent with the wording, objects and scheme of the Act, but it is inconsistent with the scheme prescribed in the ' At paragraphs 41%6, and 48-49 of the founding afMavlt. 27 MISS (chapter 4) for the classification and de-classification (or re-classification) of documents, and for access to classified documents. 59.1 U nder the MISS, the power to reclassify or declassify documents is vested in the author of the document or the head of institution concerned. Paragraphs 1.2 and 1.3 of chapter 4 of the MISS provides: '"ll ~ d classifications rests with the institution where the documents have their origin. This function rests with the author or head of the institution or his delegate(s)." 1.3 The classifications assigned to documents shall be strictly observed and may not be changed without the consent of the head of theinstitution or his delegate." (My emphasis.) 59.2 P a ragraph 2 of chapter 4 provides that persons with the requisite security clearance shall have access to classified information on "a need to know" basis. It reads: "The general rules and prescriptions as to who may have access to orinspect classified matters are as follows: 2.1 A person who has an appropriate security clearance or who is by way of exception authorised thereto by the head of the institution or his/her delegate (see Chapter 5, paragraphs3.6, 10.2 and 10.3), with due regard being paid to the need-to-know principle. 2.2 Persons who must necessarily have access to that classified information in the execution of their duties (the need-to-know principle) - on condition that a suitable clearance has en issued or authorisation has been r a nted s e x l aine i n C h a ter 4 28 59.3 I attach these extracts from the MISS marked "RJl815". 60 Th e applicants' interpretation of section 5(2) of the Intelligence Services Oversight Act would also lead to practical absurdities and would seriously undermine the ability of IPID — and indeed other state entities — from performing their functions. 61 I t would mean that IPID members and investigators -who already have top security clearance, from the National Intelligence Agency itseIf — cannot obtain any intelligence information or d ocuments that they require for t heir investigations and to perform their functions effectively, without first applying to the JSCI, who, on the applicants' version, must in turn get the concurrence of the head of the intelligence services concerned and the Inspector General before it may grant 'Written permission" to access the information. Such a scheme would61.1 U ndermine the very purpose of the security clearance procedure that IPID members {and others in government who require ready access to intelligence information) are required to undergo; 61.2 O verwhelm the JSCI which is obviously not established or capacitated to perform such a function; and 61.3 O b struct IPID in its ability to perform its investigations efficiently and effectively, as it would create onerous and time-consuming bureaucratic ~ Paragraph 44 of the founding aftidavit. processes before IPID's investigators can access the information that they require. Such delays can seriouslycompromise an investigation, and result in the destruction and loss of evidence. 62 The applicants' objection to the lawfulness of the subpoena, and their reliance on section 5(2) to justify it, is completely misguided. IPID members' access to intelligence information and classified documents 63 A s I have already indicated, IPID members (in the national oNce) and IPID investigators are required under the IPID Act to obtain a security clearance certificate — which is granted by the National intelligence Agency — in order to hold their posts. 64 The "vetting" of IPID members and investigators for security clearance purposes is governed by the National Strategic Intelligence Act 39 of 1994 and chapter 5 of the MlSS policy document, which contains guidelines for security vetting. For convenience, I attach a copy of the relevant parts of chapter 5 of the MISS document, marked "RJM16". 65 U nder section 2A of the National Strategic Intelligence Act 39 of 1994, the State Security Agency (which includes, as one of its branches, the National Intelligence Agency established under section 3 of the Intelligence Services Act 65 of 2002), is responsible for vetting persons for security clearances. Section 2A(1) provides that the State Security Agency- 30 'may conduct a vetting investigation in the prescribed manner to determine the security competence of a person if such a person(a) is employed by or is an applicant to an organ ol state; or (b) is rendering a service or has given notice ofintention to render a service to an organ of state, which service may(i) give him or her access to classified information and intelligence in the possession of the organ of state; or (ii) give him or her access to areas designated national key points in terms of the National Key Points Act, 1980 (Act 102 of 1980)." 66 S ections 2A(4) and (5) describe the nature of the vetting process. They provide, in relevant part: "(4) (a) In performing the vetting investigation contemplated in subsection (1), the relevant members of the National Intelligence Structures may use a polygraph to determine the reliabi%ty ofinformation gathered during the investigation.... (5) The relevant members of the National Intelligence Structures may, in the prescribed manner, gatherinformation relating to- (a) criminal records; (b) financial records; (c) personal information; or (d) any other information which is relevant to determine the security clearance of a person...." 67 Under section 2A(6), "The head of the relevant National Intelligence Structure or any officials delegated by him or her in writing may, after evaluating t information gathered during the vetting investigation, issue, degrade, withdraw or refuse to grant a security clearance." 68 I n my experience, the vetting process of IPID members follows these prescripts and entails the following: 68. I I n the conduct of the vetting investigation each individual employee must complete a "Z204 application form" (annexure D to the MISS). A vetting investigator from the State Security Agency then gathers the criminal records, financial records and personal information and any other information deemed relevant. 68.2 All persons applying for "Top Secret Clearances" must go for a polygraph examination at the State Security Agency, whereas persons applying for "Secret" and "Confidential" clearances are not always obliged to do so but may be required to do so. 68.3 G n c o nsideration of the vetting investigator's report, the National Intelligence Agency determines whether or not to grant a security clearance. 69 The effect of obtaining a security clearance is described in chapter 4, paragraph 2 of the MISS (cited above) and reiterated in paragraph 1.6 of chapter 5 of the MISS, as follows: "A security clearance ives access to classified informationin accordance with the level of security clearance, subject to the need-to-know principle." (Own emphasis.) 70 The MISS describes how regularly security clearances should be reviewed. It provides in paragraph 7.1 that: "7.1 The head of an institution or his/her delegate must ensure that an officerin respect of whom a security clearance of Secret or Top Secret has been issued, is rescreened every five (5) years and every ten years in respect of a Confidential clearance. 7.1.1 Enquiries will be done with the supervisor every five (5) years with respect to the security competence of an official who has received a Confidential clearance. 7.1.2 This arrangement does not preclude rescreening before a period of five years has lapsed in the case of occupational change or where something prejudicial has been established about an officer which may affect his or her security competence. Personnel in ultra sensitive posts should be cleared every three years." 71 I P ID members and investigators obtain the relevant security clearances, and have their security competence reviewed as required by the MISS. The result is that they are entitled to have access to classified documents and intelligence information on a "need to know" basis — i.e., they are entitled to have access to classified information that they require to carry out their functions — subject to the particular level of the security clearance they hold (i.e., confidential, secret or top secret). 72 As I have already noted, IPID undertook to ensure that only those members and investigators with the highest possible level of security clearance — "Top secret" — had access to the requested documents. That request was rejected by the applicants for no apparent good reason. In the circumstances, IPID was entitled to apply for the subpoenas, and was correctly issued with them, to enable it to conduct its investigations. AD SERIATIM ANSWER 73 I have already answered most of the aliegations in the founding affidavit. To avoid repetition, I do not traverse every paragraph in the founding affidavit, but deal only with those allegations that still require a response. Any allegation that is not specifically addressed and that is inconsistent with what I have stated in this affidavit must be taken to be denied. 74 Ad paragraph 6 74.1 T he applicants contend in this paragraph and elsewhere in the founding affidavit that the information sought by IPID under the subpoenas is "sensitive information about national security and intelligence". The applicants give no further explanation or specifics to justify this contention — it amounts to a bare allegation that cannot be accepted. 74.2 I am advised that the courts do not accept the mere say-so of an official as to the nature or sensitivity of information. The refusal to disclose information — on security grounds or otherwise-must be properly justified on the basis of the objective facts and evidence. The applicants have failed to show that the information required by IPID is properly classified (although, even if it was properly classified, IPID is entitled to the information). 74.3 T hat the requested documents ought not to be classified is confirmed by the proviso in the definition of "classification" in the MISS that "Security measures are not intended and should not be applied to cover up maladministration, corruption, cnminal actions, etc, or t o p r otect individualslofficials involved in such cases." 74.4 I refer also to the IGI's letter of 5 April 2018 (annexure RJM10 above), which advises that, in his opinion, the requested documents "(do) not have the potential to harmfully impact on the national security. The documents do not relate to any intelligence operation but only to the procurement of the aforesaid lT systems", and should be declassified. 75 Ad paragraph 8 75.1 I have no knowledge of the alleged "information received about a possible national security threat" associated with the ANC National Conference in December 2017. Given the vagueness of the allegation, and the absence of any substantiating facts or evidence, I deny it. 76 Ad paragraph 9 76.1 I d eny that the "special equipment" referred to — which I understand to be the cellphone grabber device procured from I-View — was required as alleged. I again note the vagueness of the allegation. 76.2 I also deny that the "all the available service providers were approached (andj were unable to provide equipments and services to deal with the threat of that magnitude". 76.3 I call on the applicants to produce evidence to prove that "all the available services providers" were approached and the responses that were received — redacted if necessary. 76.4 I a lso call on the applicants to evidence in reply that the emergency procurement provisions under the Public Finance Management Act and Treasury Regulations were complied with. 76.5 F u rther, I request the applicants to explain in reply who the "stakeholders" in this paragraph refers to. 77 Ad paragraph 10 77.1 I note the admission in this paragraph that the meeting convened on 13 December was convened to deal with "the procurement of the necessary equipments and services to deal with the threat". (I assume that the date of 13 December 2013 is an error and should read 13 December~2017. This admission confirms that the information IPID seeks under the subpoenas is pertinent to its investigation of the suspected unlawful procurement (I-View II). I again point out that the notion that there was ever a "threat" is misleading and baseless. As I have indicated above, this was nothing more than a blatant attempt to obtain money through a procurement process. 36 77.2 I d e ny the allegation that the details leading to and of the meeting 'amounts to intelligence information that might compromise national security". Again, this is a completely vague and unsubstantiated ciaim which I do not accept. As explained above, even if it was "intelligence information", IPID's investigators are entitled to receive the information, as they have the requisite security clearance and require the information to perform their functions. Further, the applicants — all but one SAPS members — have a duty under the IPID Act to furnish IPID with the information to enable IPID to perform its function. 78 A d paragraph 12 78,1 I deny these allegations. The applicant expects IPID and the court simply to accept his say-so, without giving any basis for his contentions. This is impermissible. 79 A d paragraph 13 79.1 I admit that before approaching the Magistrates Court for the subpoenas, IPID was aware that the applicants held the view that the Intelligence Oversight Act justified their refusal to disclose the requested information. 79.2 H owever, for the reasons given above, the applicants' view is clearly misguided and self-serving, and incorrect as a matter of law. 80 A d paragraphs 14 to 21 37 80.1 The correspondence exchanged between the parties speaks for itself. I admit these paragraphs insofar as they reflect the contents of the letters they refer to. The history of the engagement between the parties prior to this litigation is also detailed above. 81 Ad p aragraph 22 81.1 The reference to 16 and 17 July 2017 is an error, and should read 16 July g018 and 17 July 201 8. 81.2 The application for subpoenas made by Adv. Smith wasaccom panied by two affidavits deposed to by IPID's investigator, Mr Sehas — the one addressing the information required in I-View I and the other addressing the information required in I-View II. Those affidavits are already attached marked RJM11 and RJM12. 82 Ad paragraph 23 82.1 Th e applicants have failed to attach both the subpoenas issued to General Sitole in annexures SAP8(a) to (e). General Sitole was issued with two subpoenas — the one for purposes of IPID's investigation under I-View-I (which is attached), and the other for the purposes of IPID's investigation under I-View II (which has been omitted). 83 Ad paragraphs 24 to 26 I admit these paragraphs. 38 84 Ad paragraphs 27 to 29 84.1 i admit the correspondence referred to in these paragraphs, but deny the correctness of the legal contentions and that compliance with the subpoenas would infringe the law and result in the disclosure of "sensitive intelligence information". 85 Ad paragraph 30 85.1 I a d mit this paragraph and that the order referred to was made by agreement between the parties. 86 Ad paragraphs 31 to 52 86.1 T he remaining allegations comprise legal argument, and are denied for the reasons set out above. 86.2 I a d mit that IPID did not advise the Magistrate that the information it sought under the subpoenas is "intelligence information" or of the correspondence IPID received from the applicants' attorneys, as alleged in paragraph 50. It was not incumbent on IPID to do so because whether or not the information is "intelligence information" is irrelevant to IPID's entitlement to receive the information; and the applicant's view about the role of the JSCI is plainly wrong in law. 86.3 The application must be dismissed with costs. The subpoenas are valid and mustbe heeded by the applicants. THE COUNTER-APPLICATION 87 I PID seeks the following relief in the counter-application: 87.1 F i rst, an order to review and set aside the refusal or failure of the third applicant, as the National Commissioner of the SAPS, to declassify the documents requested by IPID and required under the subpoenas; 87.2 S econd, an order declaring those documents to be declassified for the purpose of IPID's investigation and any consequent prosecution; and 87.3 T h ird, an order declaring that the first to third applicants have breached their duties under sections 4(2) and 29(2) of the IPID Act by faiiing to furnish IPID with the information and documents it requested for the purposes of its investigations in Brooklyn CAS 565/11/2017 and IPID CCN2018010527 (I-View and I-View II). Review of the classification decision and declassification order 88 The documentsIPID has requested and has now sought under the subpoenas were unlawfully classified by the SAPS (by who in particular is unknown). The documents do not contain any intelligence information — they simply concern the procurement by the SAPS Crime Intelligence Unit of the RIPJAR and Daedaius IT systems and a cellular phone grabber device from I-View. 89 T his is not only IPID's view, but the view of the IGI, who recorded his opinion in the letter of 5 April 2018 and called for the documents to be declassified. 90 The procurement documents are also and in any event now unlawfully classified, because the classification is being applied to cover up maladministration, 40 corruption or fraud in the procurement processes. This is a clear contravention of the MISS provisions, which requires declassification. 91 A s is detailed in the answering affidavit above, IPID made repeated requests to SAPS management to declassify the requested documents. Those requests were repeatedly and unlawfuliy resisted. 92 As the head of the institution that authored and classified the documents, the National Commissioner is authorised to declassify the documents. The third applicant, as the National Commissioner, ought to have exercised his power to do so because: 92.1 The documents were unlawfully classified — they do not contain any intelligence information and even if they did, the classification was being applied to cover up suspected maladministration, corruption and fraud; and 92.2 A s a member of the SAPS, he had a duty under the IPID Act to assist IPID to perform its functions effectively and to produce any information or document in a SAPS member's possession, or under his control, that is required in an 1PID investigation. 93 The third applicant's failure or refusal to declassify the requested documents was unlawful and in breach of the IPID Act. It falls to be reviewed and set aside. 94 In light of the third applicant's conduct in this matter as the National Commissioner, and his apparent complicity in frustrating IPID's investigatio IPID seeks a substitution order — i.e., an order to declassify the documents sought under the subpoenas. 95 I PID requires the documents to be declassified to ensure that the documents can be used in prosecution in due course, if needs be. It does not suffice for IPID's investigators to have access to the documents (as classified documents) if they cannot be used in due course. IPID has had difficulties with using classified documents in prosecutions in previous cases, as state prosecutors refuse to use classified documents in criminal proceedings. This difficulty has arisen, for instance, in the prosecution of former Head of SAPS Crime Intelligence, General Richard Mdluli for fraud and corruption in the trade-in of a BMW vehicle (in Silverton case no. CAS 155/07/2011); and in the prosecution of former National Commissioner of the SAPS, Lt-Gen Phahlane and certain members of the North West SAPS, for defeating the ends of justice (in Pretoria Central case no. CAS 534/05/20'I 7). 96 T o avoid the same difficulties arising in the I-View cases, and yet further delays and approaches having to be made to the court, IPID seeks an order declassifying the documents in these proceedings. 97 The third applicant has demonstrated that he has no interest in disclosing the documents, for whatever reason. Despite repeated requests from IPID and the advice of the IGI, the third applicant has refused to exercise his power as the National Commissioner to declassify the documents — and went so far as to approach the court to set aside the subpoenas requiring to produce the C documents. In these circumstances, IPID has no confidence that the documents 42 will indeed be declassified by the National Commissioner as required. I submit that it is appropriate in these circumstances for this court to grant the declassification order. Declaratory order 98 I PID also seeks the declaratory order because the conductt of the SAPS managers (the first to third applicants in the main application) has fallen woefully short of what the IPID Act demands. They have wilfully obstructed IPID in its investigation of I-View, with complete disregard of their duties to assist IPID and cooperate in its investigations. in the face of such conduct, IPID cannot possibly perform its functions. 99 I PID requires the declaratory order to ensure that the senior management of the SAPS — andby extension, the SAPS as a whole — is m ade aware ofthe meaning and import of the duties imposed on all SAPS members under sections 4(2) and 29(2) of the IPID Act. 100 I accordingly pray for an order in terms of the Notice of Motion in the Counter- application. ROBERT MCBRIDE T US S o R O A D SI G E D b ef ore o e me at on th i s the d a y nent who acknowle ges and he/ sh eh as o obj c t ion to takingthe understands the contents of this affidavit ' h as prescribed oath and ath t he/she considers the oath as bindin in i on his/her conscience.. huVTH AFRiCAH pOLICES ~~ oo r a g 2015 -1)- ~8 COMI4fQ4gy 8~ C~ AFQPQAgss poL~@~ COININISSIONER OF OATHS RESTRICTED 5 set forth in the definitions section of the Protection of Information Act (Act 84 of $982). 3.4 The classifications mentioned above are described below. Note: Security measures are not intended and should not be applied to cover up maladministration, corruption, criminal actions, etc, or to protect individuals/officials involved in such cases. The following descriptions should be understood accordingly: 3.4.1 Res t r icted Definition: RESTRICTED is that classification allocated to all information that may be used by malicious/opposing/hostile elements to hamper activities or inconvenience an institution or an individual. Test: Intelligence/information must be classified as RESTRICTED when the compromise thereof could hamper or cause an inconvenience to the individual or institution. Explanation: RESTRICTED is used when the compromise of information can cause inconvenience to a person or institution, but cannot hold a threat of damage. However, compromise of such information can frustrate everyday activities. 3.4.2 Con f i dential De5nition: The classification CONFIDENTIAL should be limited to information that may be used bymalicious/opposing/hostile elements to harmthe objectives and functions of an individual and/or institution. Test: Intelligence/information must be classified CONFIDENTIAL when com prom isethereof can lead to: RESTRICTED PATENT,TRAQEhAARK, COPYRIGHT, DESIGN, CELbbRAIDIO COIINERCIAL, PRGPERTYa LITIGAHON ATTGRNEYS BY EMAIL To: s dw e ll m ke . c o .za From: 'ac.marais adams ams cpm Cc: thando.manentsa adamsadams.com a.vau han-wiilia ada sa ams.com y~ i®® ioo • ttbtobtA OFFICE;Lynnwood bltdge. 4 Oaventry Sl. Lynnwood Manor Pretolta South Atrtca FO bOX IOI4. Fretolta 000I, South Atlfoa IICCEX bt Fretorta • Hottb e2712d326000 FAX + 2 7 12 d32 65CNF btrtAIL masr ns a daryn.cosn Wbb www adamsadams.corn our INI«sense JSM/TDM/mv-w yoe scrcrence: LP0086 /SS MKETSU/JN 14June 2018 MKETSU AND ASSOCIATES PRETORIA "WITH PREJUDICEH Dear Sirs F N VUMA AND OTHERS/ EXECTNE DIRECTOR OF IPID AND ANOTHER CASE NO. 89565 /2018 1. We refer to your clients' urgent application enrolled for hearing on 19 June 2018. 2. We do not intend dealing with each and every allegation that your clients have raised in their application, and our failure to do so should not, in any way, be construed as an admission or waiver of our client's rights to deal more fully with these allegations at the appropriate time and in the appropriate forum. 3. The urgency of your client's application is premised on the subpoenas issued in terms of section 205(1) of the Criminal Procedure Act (Act 51 of 1997) requiring your dients to appear for an examination at the Pretoria Magistrate's Court and to furnish certain information, on 19 June 2018. 4. Our client is of the view that the issue regarding the classification of confidential documents, which ls the centrepiece of your clients' application, is an issue of considerable importance and may have far reaching implications in so far as our client's execution of its statutory mandate is concerned. 5. What appears to be undisputed is the fact that a person with top secret security clearance Is entitled to access the documents that your clients contend to be classified. 6. In the interests of ensuring that the issue of classification is properly ventilated in court, our client has instructed us to make the following proposal: GHIGD hehem Innesasl • I cepe Ieen 'I demon nnoonsc OII+Is nepela I sehemm I osnmeI cnmcrcnntonnl ' Idlsn I drcspm I dram I secre 'I sescoa I ohcsmI Ieyo I smrdnoee tnsdcst t Hoodoosodom I l esca leNa I swansea I Inhouol seccrdee Isooasos I na dacmm I ssnhahsm yoooo Hnmedecdas Dololmwdv hmoldoyseesccalaocmsoe NNONcsnem cnedlmmlshess ssunsccsmcopcsnd Geneddorsceh Imno Isessssmdcrsnw auowdopsN whenonrsm Grddo wNM smcph Gnesnsds Ihas deeden rnrho 'vhser Decno Haney Dmmn ender Nclesul Gcldm DCNNscneepcn MespmMoorns aNy oompan Nde chcchona sarsen Genoa rssNcheoy tucypeeceoDermis«om srsvmyrsosdssolmmddoppormm Iennyllermm Drowoenoon Nodnposhess maoohy Dsohsasnucea sooenaoa Ddenesey Mcnoyoemapocl nrdororora NaAse corescanes Dmsw Ioay Graroo vwscnINsy Godcey aude soc Mosw hocshesue lhonnam Norm seeps Isclar vhshpe Qessrwcnlmdsn Imd Mrhsepsomoyynchsm Dole Hmcmm werhm ~ H d rem ondcsden Heccness Mwlmhcaeoa Nsccerle Hdspa Mrassssdlbdd nndrmr Mserrc Gnde smnncr ololyarsrclss srcprsmuoas nscmcosds nhsonmdd wrw nncaeer nona sedw~ ctshs co ooseyoom Gmassaha GCNMNocal oao roml nmodorm DcomonMmecono IhcNNDMN cape acowm IHIIHay nnom ssonlm Nrcrm ~ N nmcd so Iwamnp wpmndhech wusscl pal Dmsompooum helshl cddd Snnaaa GnmnlO SOSINNO Sennmdnd DOSCSOtcntlndd Ccey ydsa DChmd Wen Cdemno Shah Smml Van Senna VOrl DSC Nrmcdea Ia Grrerpe Vuyradd Nddrae Node Henrem Seraale la OOO hnnDOHr&s Ihovsmseydom IhwswlMHNmha nssNHossuoh Hsnpedhwavosdcndsce eshsosdsorsed sconooovwhre socwvanNNcd csweslsmworoeso Mcloonnrlar NINNdsom NcsoaNIeoy dccrlnsaadcsraoas smmn ylmao haeoreso lone ~ osem m r Ihml von Ncsdc laaclolvon Dyc SSCM Heprcln odmM cmdo ssodcseasooeay Dsdo codon vsesamoernapoel shroaovspros pencdmoch Donsedmsodene saphmnmcesones Desdcysrcr ossdonnesoon nunacrmmo\ psonnssesn cncueensupndon lmredosdosoN Hadeossay Mamenlomolo hndpmssrh Icoynnshhm ysrdpsaeNywnhl Iasmhore neaolo Dsnal csecpael Dmd voodf Hdochmdhde chrmssmooplpe sheol Dummm aapde Monmnd cnansaacaoGonaenhe DraNeassm aeolen Grdssdo Dscsm ocplm Ndcmo cahocroMMapmmom ~ stsrncsm sesacosma remi sacrde Gcd MNmc scsecr lmmevocmme sahrmmesctm lomdclcl Maondo osnanunNM!ocd IesercNIN Cerdecrm Nlep pcosodedcoors) cMH GpsroeseDecor Dora Iesom Page 2 6.1. The section 205 examination is postponed pending the application contemplated in your notice of motion, to set aside the subpoenas issued against your client, which application will be brought by no later than 17 July 2018; 6.2. The documents requested in the subpoenas are to be handed over to a member of our client who has top secret security clearance; and 6.3. Our client issues an undertaking not to, In any way, use or disseminate the documents in its possession, in a manner which would infringe upon the classification of the documents, pending the determination of your clients' aforesaid application. 7. Should an agreement be reached on the aforesaid basis, our client reserves its rights to terminate the aforementioned agreement by providing your client with 20 days' notice thereof. This will provide your client with sufficient time to re-approach the courts should they wish to do so. 8. The proposal is fair and equitable. We do not believe that there can be any objection to providing the documents to a person with the requisite top secret security clearance, particularly as that proposition is not your clients case. 9. If, however, your clients are not amenable to our suggestion, our instructions are to file an opposing affidavit and argue the entitlement of a person with top secret security clearance to access classified documents. This letter will be used in support of such an affidavit, should It be necessary, and is therefore provided on a with prejudice basis. 10. We look forward to receiving your urgent response by close of business today, failing which we will proceed with our client's instructions regarding the filing of an affidavit in this matter. All of our client's rights are strictly reserved. Yours faithfully, ADAMS & ADAMS J MARAIS T MANENTSA Chactal andslgaal by auUer anl sant eharoa@slip .I Our REF: LP00$6/SS MKETSU/ JN MKETSU6 YOUR: JSM/TDM/mv-w A T T O R N F Y S DATE: 14 JUNE 201S s oem TEsrwc. ADAMS 65ADAMS ATTENTION: JAC MARAIS EMAIL: jac.marais@adamsadams.corn/thando.manetsaQaadamsadams In re: FN VUMA AND OTHERS v EXECUTIVE DIRECTOR IPID AND O THERS: CASE NO: 39565 2 0 1 8 l. We r e f e r to your letter dated 14 June 2018, which was received by our office on e-mail at 12:05. 2. We a g r e e with you t ha t t h e i s sues raised in t hi s m a tter are of such importance that they need to be properly ventilated in Court properly, hence the need for an interim arrangement, 3. We h a v e t a ken instructions on the pr oposals in paragraph 6 of your letter and our client agrees with paragraph 6.1 and still maintains that Directors: 5$. Mketsu, D. IVlantlana Associate: P J. Manzini Candidate Attorney: L Mere Para-legals: J. Ngobeni, C. Charumbwldza Ofhce Administrator: N. Mtshizana 4 086 1000529 I 0833977473 i v ~ a d m in@rnketsu.co.za l Ig l 0861000526 l 0867257285 p Head Office: Suite 627, Van Erkom Building, 217 Prestorious Street Pretoria, Gauteng, South Africa, 0001 Branch Office: 3308 Kgame Crescent, Extension, Mhluzi, Middleburg, Mpumalanga C 013 241 4000 sateliteottt ce:GroundFloor14stewartDrive,Scree,Eaattondon S 0437939913 tal04379397 1 pp •I MKETSU6z. ssocIATEs/Nc A T T O R N E Y S i n terms of t h e l a w t h e d o c ument c a n not b e h a n ded over t o I P I D members regardless of their security clearance. D uring a t elephone consultation with y o u r self on T u esday 12 J u n e 2018, it was intimated that there is a fear that the documents might be destroyed. This is rather strange because from as early as 13 February 2018, your clients office has be communicating back and forth with our clients pertaining to these documents. The sudden I'ear that the said d ocuments might be destroyed is unju stified. To the extent that it i s necessary our clients undertook not to destroy the documents. S. % e al s o n o t ice t hat y ou r c l i ent i s i n t i m a t ing t ha t t h ey w il l f i l e a n affidavit to oppose this application at t h i s l at e h o ur . T his i s r a t h er unfortunate as you are well aware that the Court roll for the urgent application closes at 12 o' clock on Thursday. Your letter was sent after the Court roll has already closed. Directors: S5. Mketsu, D. IVlantlana Associate: P J. Manzini Candidate Attorney: L. IYlere Para-legals: J. Ngobeni, C. Charumbwidza Oflice Administrator: N. Mtshizana 4 086 1000529 l 0833977473 ) b~iadmin@mketsu.co.zs ) @ 086 1000526 l 0867257285 'p Head ONce: Suite 627, Van Erkom Building, 217 Prestorious Street Pretoria, Gauteng, South Africa, 0001 Branch Office: 3308 Kgame Crescent, Extension, Mhluzi, Middleburg, Mpumalanga C 013241 000 satelit eosce: Ground Floor 14 stewart Drive,Berea,EastLondon 4, 043 7839815 Ii 04378397 .I M KEYS' A T T O R H r. Y S 6. ssocmTEsINc. We t h e r efore repeat that we agree with your proposal in paragraph 6.1 and propose that a d r aft o r der i n t h a t r egard, including our c l ients undertaking topreserve the documents, be prepared to be handed to Court on Tuesday the 19> of June 2018. Yours faithfully, %~e about the purchase of the y'abber. I told Mr,,Sesoko thatI 1Iiad reported that purchase of a grabber frpm I-View earlier on toMr. Mrabinde of his office and further asked him whether a further pinchase from I-View vrould act prejudice PID i nves tigation.I Rrther in&rmed Mr. Sesoko that Mr, l4cabinde responded to aie by telling me that IPID had sent a letter to the yOice of Major -General Ngcobo indicating that Came IntelHgence should not enter into irony new contract with I-View since I-View is under investigation. Mr. Sesoko infoaned me that according to infoanation he received, part of this Q money was gomg to be used to buy votes at yn ANC 34a Conference in ¹s rec. I inforined Mr. Sesoko that I knew nothing about part of the @oney that was going to be used t'o buy votes. Mr. Sesoko then told me that he was going to phone Generals Sitole, Tsuinane and Ngcobo about this matter.%hhn I spoke toMr. Sesoko about this issue I established that he did not know vyhat I hag discussed with Mr. Nkabindeconceding this Pa~ 8 of10 STATEMENT OF 3RXGADIERGXD CHILI matter. It ~ he n c l ear Rom Qyefacts discussed that Mr. Nc@binde did not M r . Sesoko that I +@ed and riised some conciois surrounding this ~e 6fpurchasing a grabber worth R45 million borg I-Viewer. On Se sanie day 14 December 2017 at approximately 22AO I received a phone call &om Brigadier Chan Goqlam who informed me that he was at Nasreo and that the purchase of a grabber &om I-View worth R45 million did not go ahia4, I know and understand the contents of this statement. I hery no obj oytioato talpng Qe prescribed oath. I consider the prescribed oath bindjng on my conscience, @Saeva . • o • • • • • • oo • 4 ePJI'LQ t b t e • • oeeoto • • e • • DEPONENT'S SIGhTAFUW I CERTIFY TEAT THE ABOVE STATEMI~:NT %AS TAIQÃ /OWN B Y ME A ND TH A T T E E D E P OggAT, HAS ACKNOWL'EDGED THAT HE KNOWS AND UNDERSTANDS THE CONTENTS OF TBXS STATEMENT. THE DEPONENT HAS NO OBJECTION ON TA$3NG THE PRESCRIBED OATH. THIS MR S . 4 w o AN — TO BRPORR — ldE . AMI XBE DEPOHENPS SIGNATURE WAS PLACED THEREON IN MY PRESENCE INPRETORIA ON 2018-06-19 AT 09:00. Page 9 of10 I, the undersigned, IIJIatthews Sesoko do herebymake oath and state: The facts deposed to herein are true and correct and save where the context indicates other, fall within my personal knowledge. I am the National Head of I nvestigation in the Independent Police Inves5gative Directorate which is at 114 Madiba Street, Pretoria. I am responsible for all Provincial and National Investigations of the Directorate. I report direct to the Executive Director, My persal number is 13574540 and my ofIIclaf number Is 012 399 0048. I am responsible for 5@ task team that was appointed by the Executive Director to investigate the former Ac5ng Na5onal Commissioner General Phahlane and sll other high profile inves5gations. On or about the 14~ December 2017, I was informed by Mr Khuba that he received information from a source that General Ngcobo the Ac5ng Divisional Commissioner of Crime Intelligence (CI) had approached Brigadier Chill of Cl Legal Service to recommend the procurement of a grabber for about R45 million and that the money was needed, allegedly to be laundered to buy votes at the 54'" ANC conference. I immediately called Brigadier Chifi to enquire about the allegations. Brigadier Chili confirmed to me that he was approached by General Ngcobo about the procurement of the grabber for R45 million and that he wanted him to write a letter to the IGI requesting his approval for such a procurement, Brigadier Chili informed me that he advised General Ngcobo that he cannot recommend a procurement of a grabber for R45 million when the value of the grabber is between R7 and R10 million rands, he informed him that such procurement would be unlawful. He further informed me that he competency of the IGI to give approval on procurement issues of SAPS Crime Intelligence. He further informed that General Ngcobo was not happy with what he told him, as a result there was tension between them. Brigadier Chili further informed me that he informed Mr Nkabinde our Principal Investigator about the suspected corruption regarding this procurement however Mr Nkabinde withheld this information from the team members, myself and themanag ement. After speaking to Brigadier Chili, I phoned General Tsumane and informed birn about the information I just obtained. I told him that he must alert General Sitole as General Sitoie may be approached to sign an unlawful deviation for the procurement of the grabber. General Tsumane sounded surprised to hear about such information He thanked me and said he will inform General Sitole, After few minutes I was called by General Sitole. He indicated that he was called by General Tsumane, he indicated that he was approached two days prior about a high capability procurement that was requested by Ci that was needed at the ANC 54 conference. He indicated he informed them.l presumed he meant GeneralNgcobo and his team, that as long as they follow proper process hr such p then they can proceed. He further indicated that since I made him aware about the allegation and the fact that the company Cl wanted to use (I-view) is under investigation by IPID, he will stop the procurement however I must write him a letter that he rocurem ent should stop the procurement. I wrote him a letter on the 15 December 2017 info rminghim as agreed, Letter attached marked "MS1" On or about February 2018 Mr Khuba informed the Executive Director Mr McBride and me that one of our suspects in a case of corruption we are investigating General Nemutandzela requested to se e hi m p rivately. Executive Director agreed that he can speak to him and report back to us. Mr Khuba then informed me that General Nemutandzela told him that there is another General who wants to talk to him. Mr Khuba reported that this General was General Mkhwanazi. He f urther reported that General Mkhwanazi told him that he had a 204 statement from Mr Nkabinde and Mr Mahiangu's statement was ready to be signed however Mr Mahlangu was afraid of the Executive Director. He further reported that General Mlchwanazi wanted to solicit information from him about IPID high profile investigations. After Mr Khuba reported on this meeting with General Mkhwanazi, we took a decision that we should first verify the information before approaching the inve stigators. Around April 2018, Mr Mahlangu approached me and informed that he has been approached by Brigadier Kgomo of CI t o f alsely implicate IPID management and the Executive Director Mr McBride in particular, about wrongdoing in the investigation of cases against General Phahlane. In return he will be appointed as a Brigadier in the SAPS He indicated that Mr Nkablndehas also been approached and he has agreed as wellas Ms Saohatse. He further indicated that he recorded some of the conversations with Brigadier Kgomo. I listened to the recmrdings and told him to hand over the recordings so that they could be transcribed and translated. He indicated that he met with Mr Nkabinde and informed about his conversation with Brigadier Kgomo, where upon Mr Nkabinde told him that they must take the On the 16 April 2018 we called a meeting of ali task team members with the Executive Director, so that we would establish the extend of the approach by SAPS members to our investigators. The Executive Director requested atl the investigators who have been approached by SAPS to falsely Implicate IPID management to come fotvrard and indicate who approached them and how they were approached. Only Mr Mahlangu raised his hand to indicate that he was approach. Mr McBride then indicated that he is appointing myself andher Khuba to investigate the approach to our investigations as the conduct of SAPS members amount to corruption. On the 17@ April 2018, Mr Nkabinde wrote an e-mail to the Executive Director and copied me, in the e-mail he was objecting to me and Mr Khuba investigating the matter as directed by the Executive Director, allegedly because we are also suspects in the matter, e-mail attached marked "IHS2" On the 23~ April 2018, I wrote a letter to Mr Nkabinde removing him from the task team, as his continued participation in the work of the teem had become untenable. Letter attached marked "MS3". He received the letter on the 24 April 2018 and made notes on the letter about his response to my letter. The Executive Director responded ia him on the 24'" April 2018 and requesting him to provide proof of what he was alleging. E-mail attached as "MS4". IUlr Nkabinde responded on the 25'" April 2018 by simply noting the Executive DirectoCs e-mail and that he understood the contents thereof, email attached as MS4". On or about May 2018, I received an e-mail from Col Roelofse with an attachment of a report dated 28 April 2018 by Mr Nkabinde to the Minister of Police in which he is making allegations of unethical conduct against the Executive Director, myself, Mr Khuba and the task team investigating General Phahlane see the report marked "MS5". The allegations made by Mr Nkabinde are not true, these are the same allegations that have always been made by General Phahiane. Since Mr Nkablnde has decided to work with our suspects to our investigation, it makes sense that he will support their false narrative. l would comprom ise like to respond to the allegations as contained in his report to the Minister as follows: While the team was reporting directiy to me and even after I roped in Mr I Khuba to be the project manager, at no stage did any private individual including Mr Paul O' Sullivan was ever allowed to oversee the investigation. I am informed by the then lead investigator Mr Mahlangu that Mr Paul 0' Sullivan did assist the investigating team at the initial stages of the investigation, by accompanying them to Kameeldrift Estate including typing statements based on the interview with witnesses. They also received some information from Mr O' Sullivan or Ms Trent as they had access to systems that IPID did not have for investigative purposes. Meetings with Mr Paul O' Sullivan and Ms Trent were held in the context of assisting investigators with information relating to inmetigation. There was never any instructiori from the Executive Director that IPID investigators must work with Mr 0' Sullivan or that they must give him information obtained as result of the investigation by IPID. All investigative information obtained under my supervision was obtained legally, following the due process of the Iaw. I am not aware of any unlawfully obtained evidence. I am not aware of any planning meetingwith the media nor was such a meeting at my behest or that of the Executive Director or Mr Khuba. In any event it is impossible for Mr Khuba to have been able to direct such a meeting as at the time he was still dismissed. 16.5 All cases that are Investigated by the task team are investigated as a result of a complaint received. I am not aware of any instruction by the Executive Director to any member of the team to falsely encourage anyone to Iay criminal charges against any General in the SAPS. 16.6 No Investigation that is conducted by the hek team was ever stopped nor was any instruction given by the Executive Director to stop any investigation were prioritized based on available resources at any given time and workload on the high profile cases investigated. 16.7 Given what we know now, it is char that Mr Nkabinde's intention by not informing us of the R45 million transaction as indicated in paragraph 7 above, was to protect members of Cl and General Ngcobo in particular. His conduct there1ore amount to misconduct at best or defeating the ends of justice at worst. I know and understand the contents of this declaration. I have no obJection to taking the prescribed os. I consider the prescribed oath to be binding on my conscience. IWATTHEItS SESOKO I certify that the above signature Is the true signature of the deponent who has acknowledged to me that he knows and understands the contents of this affidavit, i IN h ih N d 9 d d « • ~ P dayof i COMMISSIONER OF OATH Rank:&~ cP A .W ~u"~iraq ~~ Independent Police Investigative Oirectorate 114 Madiba Street Pretoria QP IL) INSRFENDRNT POLICR INVRSYIIAYIVK QIRRgYORATR PlhahaayXSI1, PIKiaRN,N01. Car Fanan ~, 1MuaQa Snead PRFIQRN TekslQ)seeN00, Fez (Oi2) 32{i 00$, Smk cNshiah@jklgwm ash aneMya csssssn1001F Ene: u seso'ko Ollice of the Ne5onsIConsnisslaner Saps Head OIco Nechthuis Building 231 P~ S t reet Pieiaihi N01 eenerel Stole suhJecL' ASeged freud end corruption against members of Crhne hitelifgence and hvhwr Integrated + SysterngrooidynCae555f11001 1. NTROMCYION The hdependent Poke lnvestlgsgve Directorate ls Inves5ga5ng a case of fraud and cotrup5an in Ianna of sec5an28(gg) of FID Act, 1 of 2011. Re hvestiga5anslamsfram arequest madebythe SSNer of Police a nd In~ General of Intel5gence raganlng aeup5on iwatving ~ of rand in Ihe &lac I~ a c e division of the pages, On 1%1t2017, an urgent mee5ngwas held between IPID and the lnlairnant wherein si5Mnumonsurfaced regarding possible deshuc5an of evtdiuus In CdmeIidelligence af5ces and eicos of the hnpricahd Seke Provider, Biainwave trading as I@em.The IPID was made awse of sn exhSag ~ w5h I-View Integrated System and Saixhient ac5vIes. Thea also appear to edst a)riupt relsSonships w5h MsJor 6eruuul Nemutanzt»tu, ~ Genend Qskhele, Lt GeneralPhshlaneand IheSenice Provider. The State allegedly sugared a lass of R54 ON 000.00 hr s syslem which was has5iy procured w5hout proper piacedures being Mowed. The Dhactoele raidedthe amcesaf Crhne lnh5igence ln Pretoria ~ b y meintuus of inspector General of Intei5gence resulng in the sahunrofisplops, computes and ce5phones,Thesecond teamwent IoDsiben on 14111I2017 and ~ for asearch warrantwMchwasgranted andexecuted at theiden55edoperational center of I-viewhlegratsd Systemin Durban. The o~n ~ Int he sehwe oflaptops, computersand ce5pluum. itis allegedthat between200ecwnber 2016end 31March 2017aprocuremenl Isocess vmshlthAsd bshvsen the Crime Irdelgesce (Cl}, o dlvLvton of Ihe South African PoSceSenkm (SAPS) and a compsny caSed fhaimsave Projects 1323cc tradingas I-View Integmled ~ms elh rsgtslrNon number CK 200NQ588523. Detng pmSmlnary In~Sons It wes estabSstuxt trtst thwe wsm gross hreguhnSes in the Ixocuwnsmt process IasuNng ln the Sale sutfedng a has of mure lhsn RS4 IMO 0009). lt ves eshhSshwfIhet tender proowses were not conecSyfollowedand nopaper appScstionvms made. Only tee quotelons were obtained. The aneurin fern Brafnwave rPojects1323cc ~ as IVfev fntegmtud Systeus vNhmglstemd address 346 IANhevmlHeyhvaRoad, Grsyvllle Dtuhanle the amount of R33868900.00. The olher was from Pertect Soutce Profwxdonat Swvtces (Pty) lN vrSh regis ha5on2N4%239567 and mgsdsred address26 MwI Chanel ,264 IJhun Avenue,Fsrndsls, Randhurg+ recorded on Ihe quols5on htvoice tue4fed Io lhe SAPS) ln ths amount of R457IS $91.1&. Hewever, accordhg the Central Supphr Database used by Govemnsmt, the reconiwf bushess ~ o fPet%et Sowce Rofessfonal Swvtcss is 15 Noah Vista,71 VaSey Vaw Avenue, hhrnisg Sile, Dwban. %tur nmnpartngboth quotattwts, it becamedear that Ihe dsscrlpSon cohue wee Identical, It Is onlytho amowds that ~, However, acconSng Ihe Cenhal SuppSer Database used by Goverwnent, I-View Integmled Syshms is rag~ a s supplws of ehctrlcal aquIpmsnt and conyeenh and Pwfect Sowce Protesstonal Services Is purely human resource mwagarsejtt sesvicss. If aho stdictdes IIat Pwfsct Source Ptohrsshna1 Services was non-Iax conySant on04 ~ 2N 7 and thend'ore not eSgtble Io peNe a quohdhn. In this ragwd ~ S ource Pehsshrud Setvhss Ixovfded a fax clearance antIScete hdlcalfng tex coeygsnce Som 19 IIlovender SN6 to20Novernbst'2017. &is vmsalsonot cgscfosedas far as Scouche etdsbSshed.It Is char liat 5te abovemsn5onedh5ahd cover quoit vvas supplhd by Pertect SourceProfesshnsl Services foenure Ihe aemgng ofthis conhactto I-Vhwhdsgrated Systems. Dudng lheInvss9gslhn, Ihe ovmerPerhct Soutce disputedhaving su~ any quofs5on IoCrhns InhNgwua lor anamnuntof R45715 1g1&. However shesusleciad Ihather husbandralghthave used her e-mals Io provide acover quote Ior I-Vfswsince he fs a hest@and of Seosner uf Nse htfesrated ~ S h e ~ sh ded 5urt she sawamount an of R790 SN.00 deieNed Inh her btxth tess accounthy I-Vhw. whkh sha suspachd to be I dckback Iora coverquote.Hsr husband allegedly hok thetnoneyandshewaslett owingovw'fottyfeusandnmd in tax(R400N.~ 2.5 T h e invsslgabnnincnnbnning in esteblish the exhnt of the fwohement of ynone members bnlhh Cl and msnugenmld 3. NEW AlLEGATIONQF CORRUPTION 3.1 On 2017II&4 Ihe Dlrectonde rscehet e Ipowregeiding &her Irsreaoaon shich iseorIi1wty Se mNon rand(R45000NOCTO) dinrctedhr Bminsraue,trading asMew IntegratedSystwa Theamount is eiisgsd to be tur Ihe psynsmtofe Saber systemwhich Ih balue ls bebusen seenmIIonrand gV 090 000.00) end tsn mnlhe mnd (NO 000 000.00). lt war sIM tuought to es e~ Ih s t such smountof money directed Io I-View fr%grated Systemwss In lect to be laundered for buying of valse sths ANCcont'erenee. 32 I h s Directorate engaged number of SAPS senior oINctsts, vkom some uennned fist such tmnsectton one behg pushed ateli eet resutsg ln a strelned ruh5onshfp eisungst senior mwnbera It Is ~ tl d s bedqyaund thai the tNectumte Nnd Ns ~ tr a nesclon suspicious. It is who IrNeresNng to nots that the senaempany wlsch tsbeing hwesogsted by lhe Dhsetorate tssaidtube theo nly companywhichisah@tosupplyIhe system. 4. RECOItNHIQAIION The IPIO reconunends tart Ihe trensecIun of R45 000 QN.OO d~ t o I-Qssr lelsgieuut~s bu slopped Nh Insnsdhde sltct. It is hrtwr nrconsnsndsd that SAPSsuspends agIts dealings wNh8nweere, tnuNngas4helnhrgmted Syshmuntg5ieleeellga5onis condehrd. N 0 NAYlONAL HSLOOF NNIESIQiAllOHS INSKPNDENi POUCE NNBIIIQTAIVE OIRalIOSLTK nam r REQUEST FOR AN INDEPENDENT AND COMPETENT INVESTIGATING OFFICER TO BE APPOINTED Cedrick Nkabinde to Robert Mc8rlde, Antonett Mphago 2018/04/17 08:58 AM Cc Matlhews Sesoko, Innocent Khuba, Cedrick Nkabinde Goodmorning,Executive Director As per ourmeeting with you and the Task Team yesterday, 2018-04-16 refers. That there are IPID Investigators that were being approached by the SAPS for positions and to submit incriminating statements in return. The Executive Director have tasked Mr Sesoko and Mr Khuba to commence with the investigation into these allegations. It is common course that few weeks ago there was a media query regarding the same allegations whereby my name was mentioned as one of the IPID Investigator who was also approached. In light of the above, I humble request that the Executive Director to appoint an Independent and Competent Investigating Officer to investigate this serious allegations for the following reasons: • Mr Khuba is a possible suspect into these allegations ( More details and evidence in this regard wIII be provided to the Independent Investigating 0%cer). • I h a ve lodged a formal grievance which is stIII pending against Mr Sesoko, Mr Khuba and others so therefore they are both not suitable for this task. I hope the above is in order and will reach your careful consideration. Thanks IQnd Regards C.M Nkabinde Principal Investigator Independent Police Investlgatlve Directorate +21124310553(Cell) "Truth Is easy to understand but the trick ls how to discover it" The Honourable Mthoko Nkablnde. yPLQ lNORI0RMDKNT POLICR INVRSTIGATIVK D I R ECTORATK i%a@BagX84LPRE'Mh,0001. C0rFmumMfce, NI M idis SlmeL PRETOlN Teht012I3000000,Fse f012I3S 0020,Bnae cekeSdet01Pd,snvm Enq: M Sesaka MrCedrick Nkabfnde Independent PoNceInvol Nahonat Offce 114 Madfba Street PNtorta ONH ve Directorate Dear Cedrfck Iifkabfnde SUBJECT: YOUR REIIOVAL FROM THE TASK TEAN T he fnformalfon at our dfsposaf suggest fhat you havebeen apfMosdedby members of SAPSmost ~ l y those alhched Io Crfrne Inle~ w N h8 view of gfvfag Inksmatfon about.fPID'0 Invesffgalfons snd lnanagernenL So Qr you have not yet dsclosad Io Ihe managementShat these appfoechse %818eff about and IIe exlentof yourinvofvanuurtdespite befnggivenopporfunity Io doso. In that pren1fse, I have taken adecfsfon lo refease you Oomthe IeNn unII Ihe inveslga5on as onfered by Ihe Execulve Dfrector is concfudeL This decision fs taken fn the interest of Ihe team. Should I deem it necessary that your assishtnce wl be requked for anyspecie Iork, you wiff beInfonr18daccontingfy. You wi Iepott to your olige In KZM on your rehrn kon1ieave, /1 C4tA/~ HATIOIIAL HND- NVESllOATINIS wcsccccjrr eoucaccc snsews ccKcmua cAlE' P id/ 7W~ 4 /St W I . < S iM~ r ~~ »,+ g~~ ' +j' c~/~ i Higci~ss~F I ~ ~ . ~ >i g ~ s a u~ >~ cg - Z~ > I4M g e i m ra / r >' i Z 5'e mM C~ i o~c~~ 8/ <~.g« /Q ~i'~Cd lp * yea' e / ~ s. / ~ ' s~R ~ ~ Vga/ )I r-' C ~g.g).~ ~ ~~~ ~ p A 6'~ xg3// zr. / 4Pf()gal@ X~ / 4 Si&Wc-'p' Re: REQUEST FOR AN INDEPENDENT AND COMPETENT INVESTIGATING OFFICER TO BE APPOINTED, ' Cedrick Nkabinde to: Robert McBride 2018/04/25 11:15 AM C . Anlonelt Mphago, Innocent Khuba, Khangala Sihadi, Matthews Sesoko, Robed McBride Goodmorning, Executive Director Sir Your email is received and the content therein is hereby noted and understood. Thanks Robert McBride From: To: Cc: Goo d Day Your email of 17th April has referenc 04/24 ' 2018 03 14'17 PM Robert McBride/Headoiiice/IPID Cedrick Nkabinde/KwaZuluNatai/IPIDOIPID Antonett Mphago/Headoffim/IPIDOIPID, Cedrick Nkabinde/KwaZuluNatai/IPIDOIPID. Innocent Khuba/Umpopo/IPIDOIPID, Matthews sesoko/Headoirce/IPIDOIPID, Robert Mc Bride/Headoftioe/IPID©IPID Dale 04/24/201S 03:14 PM Re: REOUEST FOR AN INDEPENDENT AND COMPETENT INVESTIGATING OFFICER TO BE APPOINTED Khangata Sihadi Good Day Your email of 17 April has reference 1. Your request is, in effect, to change the leadership of the investigation into SAPS penetration of IPID for criminal purposes. 2. You provide, in effect, two reasons for this request (B) Mr. Khuba is a possible suspect. You also indicate that you have information and evidence in this regard. (b) That youhave a pending grievance against Mr. Sesoko and Mr. Khuba( and "others") 3. In order for me to deliberate on whether Mr. Khuba and Mr. Sesoko are both not suitable for the task, l will require to be adequately informedabout the situation. 4. Consequently, as a result to 2(a) above, I will require you to disclose to me the "details and evidence " that you refer to in your email. I will appreciate receiving the same soonest. 5. My understanding is that the grievance lodged is not about the conduct of Mr. Khuba or Mr. Sesoko. It relates to the recruitment process of DD: Investigations post and therefore this is the competency of the Human Resources not the individuals mentioned. 6. I am informed that the investigation into the grievance lodged is concluded and we are awaiting a report. Regards Mr Robert John QcBrlde Executive Director independent Police Investigative Directorate Private Bag X941, Pretoria, 0001 City Forum Building, 114 Madiba (Vermeulen) Street, Pretoria, 0002 TeL' (012) 399 0026 Fax. (012) 399 0144 •g • hhnrtL e Agowhrg lhctrtatnhg e ofeINance unhnrhSy. • Abuseof eatharltybyhagagny~hrdhhhrahr wNrcut enyvagdcorayhrhrthr ultartor excise. • Uahsshrgy ghrhrgtnatruclons not tohrwwg gefea spsciccase IbrpsnronalgahL ~r e ssntagonetaanraf and euthorRylotwenusatraraof the QPClascendedfugSne hrlhs IPS trak tsarnthrugsrtor mo5wL • Qonworhrgexl tntrscapgon ef ~ccnarnaggggon trrecnward anhaahrltransrnhnrhnrcfserruL fneetfgatfan to: Lt Qansrsf Pfcahfatts Ws Inwetfgagcnlaafietfeadedhy a Pdvsh ftug@luafone'pauIQsuIfwe'who la pecelvadlo bs tba ceapfafnantfn tbe eager. Nfr Peul CSaNwN haSoaaf Ihe fogowfag $. lo laed gi fsveslfgegon 2. fo ecoia all uae IP% htfar ~ p u t eue wltnssses,0agter dtuRatstsmeda for wffneases. 8. 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IhfgudfsrShumeu Phulhuwasghuulhuhsklo fnlhwue Htuugwune fucunyout Se ~ Suwusfm~ ssekfbuhskfbehuenIIngsee, Mr INcBdde, ~ andmyadffucnntrfncu Hfu ugwunutofuhdcsfuusfufssenfofwhfchhuwssuucomhrlubfutodoua IIIHHlCAL CONDIICf: QRRCI'OI, IN IRIKRT SCSIIDR On or shout MembIN8, ther' wee a~ t h at hok pfaceat Mr Mnndhrksyfee M elrhrngu(5%3'pfece, eweekendbekrstbs Nrst rneegngbetasen the current Hanourabfe Mfehrter, Qr8fwhf Cahotand Mr Robert ~ an d the ~ w a s hr hrak Sregrofegeto Se rnsdfs beforesuchmeegngocufd takeplaceeo that OreNnhrter wuufdbuySrsstcr nt.PaofNsthatware pnwsnt fn tbfemsegngwasMrRotnnt QStde, Mr hfsmf~ h fahhrngu tiPXII, u htantshaRapbe utiPIDg hh'eve Nhsb» deandMrTebogo pkcbrfdee ~. TheinetnrcthrnwasgismtoSrsIPlDepohseyasonhmake surethatgre~ was feahadtoth errungs and itwasindeed feahedasphnnedthruughhey Batsnran of ilk aNI prehrrrceefasshlhrmfnRurtrfanafrwea@agea ae The+ DPCturernbsrsare bassdparrcerwngyfnND end wereIssued wffhFfnhhurfgfcatfon oardcso Srathr scrnefnstancss they hohtSraawefwrsoutas RD ogfcfate andfn ognssasDPg rfafrerugngan thefr dssherfouhernurorsfnhrtsrotifectheLltraothernurndafagfssn totbssstao DPQannntuaawasto conhoflhe IIPASsuugh theh whhe'aproeeouhA ocrrtsot, UNHSCAL CCIIDVCT: NBCLNVR RRCONtBlhUION I'n Ifohlof tfsaarfoue tesfatfoneafove, Iha couduotl haveoutlined canealy heseanle sevethe ImyuteebJsclves ofNr Rebut Qc8rfdeandhfsaomuyanyfnNyeNcipanh aauw abereThetr unsthicaf and «nhwht coahst heeler Nachlag hnpgcaflone end can only Seweeaea tfuest Io l4ghuel SscurÃyotlhe couauyas a who@asIlaeslw fo Iladerelas the Ssf'sty and Sacatlly of lhe Sale, • ~ a nfnquffrt Info fhe UneNcsl Caoductcf Ihe Qecu&s Qecfcr, IN'rRabeth4$rfdshs inslffulsd 'fhatls Relee dby@hnenfsiandOffalCfuagesbe Setfoucfy conskfesdhaRes he fs sluwwt lnhdng IPQ hh tutffmrandmsafsageabfeQseysfe • Qe Hccwaubie Mfafafur8wlcssly tosfdete fheappofnhnsnf afu cclnfshnt yeson San ouhNa 0»ewfaensnth onferlo Isfnff hack agoadfeaffe andfnfagdtyofIPS. • OPCIlswehfndeyenden5y NotnIhs NDIuhehrgocdgownanceand anen@aneent~ hhpendemeasd ~an he 4med Io IfshaL • 7hs lRseurafS jmnfsfertucmefdsr8s knssdfelesedsplayfnyof myeIffn 8APS as onlesd eevhaeNnIhe IRODMshnieses asedcus6sk tu epee' IIKABNIL ~: K N4BR TRIAL SPESLl TASK lSQl ll rf g'I Q 1140SPSI4DEI4T PDI.ICE 114VESTIQATIVE DIRECTORATE rttrt4D S000041 Itlr070104,0001 001 foee Sttltrttt0,114ll4Nt4 QtCyL PIIEIN101 Telerg 000 0000, fax:(OIII39$1410.Kate a0trrthssftt0MaE00 ' Illlll l t w~ By Hand The National Commissioner General Sitole 23 January 2018 South African Police Services 231 Pretorius Street Wachthuis Building Pretoria 0001 Attention: G eneral Vuma General Taumane General Ntshea General Ngcobo General Khan RE: REQUEST FOR OOCUIIKNTS IN TERMS OF SECTION 24(3) READ WITH SECTION 29(2)(b) AND(c) AND SECTION 33(1) AND 33(3) OF THE IPIO ACT NO.1 OF 2011 1. I P I D i s i nvestigating numerous cases within the C rime Intelligence environment, where request for declassification of documents was made, To date there has been no positive responds from the SAPSmanageme nt.Find Ihe attached request marked Annexure "A" and"B" 2. Th erequest indicated in Annexure "A" and "8' has been outstanding for over 6 months. 3 iPI D i s further conducting investigation of a'legation of corruption against other members of Clime intelligence including some involved in the above cases, The allegations relate to a corrupt relationship with the service provider I-View. IPID request thai the documents on the I-View investigation that are possession of Ihe IGI be declassified and provided to IPIO, as well as the Recuest for documenls Page I downloaded data on the computers and cellphones of Lieutenant Colonel Mahwayi, as it relates lo the I-View investigation. The downloading was done by Crime Intelligence Gyber Unil, Colonel Smith. IPIO also request declassification of the personal file of Captain *'KGB" Tshabalala who is currently registered as Crime Intelligence Agent. Files from both Crime intelligence and Personnel Division are requested. information provided to us by sources within Crime Intelligence indicales that Captain "KGB' Tshabalala was being paid by SAPS Grime intelligence from the SSA fund while he was serving his senlence in prison. We request SAPS to provide declassified documents in this regard and answer the following qvestlons:6.1 Who authorized and approved lhe re-appointmenl of Captain Tshabalala to the Pofice in September 2016? 6.2 Who approved Captain Tshabalala's conversion lo an agent programme In September 20167 6.3 Who authorized his payment as an agent while he was ln prison from May 2013? 6.4 Why Captain Tshabalala was handled by Warrant Officer Nernbwiii who is in IT section and who is nol responsible to handle agenls? 6.5 Why Captain Tshabalala was not removed from SAPS persal system after his dismissal in June 2013? You are advised that the continued retenllon and paymenl of Captain Tshabaiala as an agent is in contravention of Ihe SAPS policies and the PFMA and therefore unlawful. Appropriate action must lherefore be taken by SAPS to remedy this situalion and recover the resultant irregular, fruitless and wasleful expenditure. The approved MISS document provides that "security measures are not intended end should not be applied to cover up maladministratian, corruption, criminal actions, etc, or to protectindividual oNicialsinvolvedin such cases". Reituest for documents Page 2 downloaded data on the computers and cefiphones of Lieutenant Colonel Mahwayi, as It relates to lhe I-View investigation. The downioading was done by Crfme intelligence Gyber Unit, Colonel Smith. IPIO also request declassification of the personai file of Captain "KGB" Tshabsfafa who is currently registered as Crime Intelligence AgenL Fifes from both Crime intelligence and Personoef Divfsion are requesled. information provided Io us by sources within Grime Inteffigence indicates that ntel ligencefrom Captain "KGB" Tshabaiala was being paid by SAPS Grime i the SSA fund while he was serving his sentence in prison. We request SAPS Io provide declassified documents in this regard and answer the following questions:61 Who authorized and approved lhe re-appointment of Captain Tshabafafa to the Police in Septemb er 20167 6.2 Who approved Caplain Tshebalala's conversion to an agent programme in Seplember 20167 6.3 Who aulhorized his payment as an agent while he was in prison from May 20137 Why Captain 7shabaiafa was handled by Warrant Officer Nembwili who is in IT section and who is not responsible to handle agenls7 6.5 after his system Why Captain Tshabalala was not removed from SAPS persal dismissal in June 20137 You are advised that the continued retenlion and payment of Captain Tshabaiaia as an agent is in contravenlion of lhe SAPS policies and the PFMA and therefore unlawful. Appropriate action must therefore be laken by SAPS to reinedy this situation and recover the resuitanl irregular, fruitless and wasteful expenditure. The approved MISS document provides that "security measures are not intended and shorjid not tje applied lo cover up rnatadministration, corruption, cnrninal actions, etc, or to protect individual olFiciaisinvolvedin such cases", Request for docurrients 9 You r oNce is kindly requested to comply with this requesl ln the spirit of cooperation by no later than 30 January 2018. 10 F a i lure to comply w>th this request will teave us with no option but to approach the Court for appropriate relief. Regards NR Nl SESOKO NATIONAL HEAD: INVESTIGATlONS DATE: I 2 O I Request for documents Patte 3 " SUID-AFRIKAANSE POLISIED)ENS SOUTH AFRICAN POLICE SERVICE Privaaisak X 301 PRETORiA 000I Pnvare Bag X 301 PRETORrA 0001 VerNry sing Reference SSver1on Cas 18547-2011 Navrae Enquines Lieutenant General T sumare Teleloon Telephone 012 393 2874 E-mail NC Deieclio s s THE DEPUTY NATIONAL COMMISSIONER SOUTH AFRICAN POLICE SERVICE CRIME DETECTION PRETORIA 0001 v a The Executive Director INDEPENDENT POLICE INVESTIGATIVE DIRECTORATE REQUEST FOR DOCUMENTS IN TERMS OF SECTION 24(3)READ WITH SECTION 29(2)(B) AND SECTION 33(1) AND 33(3) OF THE IPID ACT NO. 1 OF 2011 Your letter dated the 23'4 of January 2018 relating Io the above matter refers 2 Ple a se take note that the copy of the report relating to lhe alleged security breach at the residence of Lieutenant General Phahlane is available and this office is still trying to locate the original file for purposes of reclassification 3 The p rocess to have the documents relating to Silverton Cas 155-07-2011 and Lyttelton Cas 432-11-2011 reclassified cannot commence because these documents were seized by the Directorate for Priority Crime Investigation and are currently in possession of the said Directorate. 4 As t h e relevant documents relating to the I-View investigation are in the possession of the Inspector-General of inlelligence, the Office of the Inspector-General of Intelligence has been requested to make available ail documents relating thereto for purposes of reclassification. 5. In a d dition Io documents in relation to Captain Tshabalala which were provided lo your office yesterday, please be advised that the process of having the personal REOUEST FOR DOCUINENTS IN TERIIIIS OF SECTION 24(3) READ WITH SECTION 29(2)(B) AND SECTION 33(1) AND 33(3) OF THE IPID ACT NO. 1 OF 2011 file of Captain Tshabalala reclassified has commenced and your office will be engaged further in respect thereof 6. Fu r t her information relating to these matters will de communicated to your office. Yours Sincerely LIEUTENANT GENERAL DEP TY NATIONAL COMMISSIONER: CRIME DETECTION LJ fSUMANE D ate:~~tZ Pl 0 < IHDRPRNDRNT POLICE INVKSTIDATIVE DIRRCTORATR Peeo SRI XSII, PRSTORtA,OOOIC9r fonsn Rdlrsrr, l I4 %Mba S9III, PRETORN r. rr g gm~rl c~ Tr9 /la 999 g®0. Pyt gll7) 399 I4Rl.en99'~ The National Commissioner General Sitole By Hand South African Police Services 231 Pretorius Street 14 February 2018 Wachthuis Building Pretoria 0001 Attention; G enerat Vuma General Tsurnane General Ntshea General Ngcobo General Khan RE: REQUEST FOR DOCUM ENTS IN TERMS OF SECTION 24(3) READ WITH 29(2Nb) AND (c) AND SECTION 33(1) AND 33(3) OF IPID ACT NO1 OF 2611 I refer to the letter written to you by Mr Sesoko dated23 January 2018 as well as the responses from General Tsumane dated 30 January 2018 and 31 January 2018 respectively. Copies attached foe ease of reference marked Annexure "A", 'S" and 'C". 2. Mr S e soko also informs me that he spoke to General Khan on the 13 February 2018 as a follow up to this letter of the 23 January 2018. He indicates that General Khan undertook that all documents will be provided on Monday the 19 February 2018 as the National Commissioner and other senior managers were not available. 3 I no t e with concern that SAPS has failed to comply with IPID request for months now, in contravenlion of Seclion 29(2) of the IPID Act No 1 of 2011, Requestfor documents ito $24(3) read with 29(2)(b) Page I 4. IPI D is not willing to accept these delays any further. Failure to comply with these request by Monday 19 February 2018, will result in IPID invoking the provision of Section 33(1) and 33(3) of the IPID Act, and instituting any other legal remedy necessary to ensure compliance. Regards INR RJ MCBRIDE EXECUTIVE DIRECTOR DATE: Q~ Request for documents ito S24(3) read with 29(2)(b) Page 2 intelli ence (I) g I Of l ice of the Inspector-General of Intelligence REPUSI.ICOF SOUTH AFRICA PO Sssa 1175, MPJILYHPARK, OO77Sogoso, Cslr Allossusy 6 Loo 6Isool, MENLYIO Yal IO12I 367 064$47/61, For. IO'l2> 367OS2O QIGI/IG10 (IG70)6/1/14/5 DIR 28 March 2018 Honourable Minister BH Cele, IHP IVIlnlster of Police 231 Pretorlus Street Thibault Arcade SAPS Head Oflice Pretorta 0001 Dear Minister Cele Declesslf/cet/on Of Documents ln the Custody of South African Police Setv)ce: Crfme lntelllgsnce (SAPS-CI) 1 Refe rence Is made lo Ihe above-mentioned matter and ln particular lo lhe letter dated 20 March 2018 received from Ihe Independent Police Investigative Directorate (IPID). Copy of the said leler Is attached hereto for easy reference. 2 Background 21 As i t ls apparent from lhe letter referred lo above, the IPID has for a period of tone been struggling to secure cooperation of Ihe South African Police Selvlces-Crime Intelligence (SAPS-Cl) for deciassication of docurnenls, vyhich documents are required for further investigation of alleged criminality Involving certain members of SAPS-CI. OaeAILSSSS SSOOyaSSSSyyaSSaaaaaay • SlashSSS ya Saat aahSSO hoasta «a SSaMaahals • Slahalra OMaSVISS JohSSaa«a IaaasaN • KaaSSa aS«Sos W«s hayeMarosaesss sshoaalyshsaal«ssso• I assi yaaaoslssaasass «assosssssas • olhlyo asasslAhl sasiaassowsssooss s • olsl yasss aos Ohao nsssls««IOswoshl • OaslysllssashhhSSa ssssyh«ays Sslaoaas leyssssMhhN4IslsSsoaolaaSo ~ bwoshllollMsa JQWawysSaaaaay COhlFIOF.NlAL 2 QSN910flal+5llll45 sl Much Jsls psetasaNhason el Docsussnts fn Ae cusantyof south Aeeaa &Ace suvtca.. c4ne lalNlgweersvp%.cs 2.2 T h e I PID approached the Nnister of Police, Honourable Nnister B Cele, INP for hie Intervention, whereupon Ihe Honourable Minister advised that his intervention wIII be dependent on written thoughts of Ihe Inspector&enerai ot Intelligence (IGI) reganiing Ihe possible impact on tiatlonat Security by the Intended dectsssII'cation of documents in question. 2.3 T h is Iherefore serves as a response to Ihe aforesaid letter received from the Executive Director of IPID, Mr RJ McBrlde and tc address the request fram Ihe Honourable Minister Cele. 3. Optr r ton 3.C The departure point In Ihis regard is Paragraph 3 of the NelionstPolicy on Secu+ commonly known as Mtnlmurn information Secudiy Renderds (MISS), which sets out guidelines on Iha procedure for sate custody of documents, classllication thereof and Ihe process of declassification of classified documents. TheMISSdocument provides en explanation on classification of documents and in particular Paragraph 3.4 gives an Injunction that '...security measures are nof intended and should not be applied fo ewer up maladministration,convptlon, crfetnsl sctian elc. or to protect tndwfduaVoNctsls involved in such cases.. 3.2 T h e abovementioned Paragraph 3A of Ihe MISS document means Ihat investigations of crlmlnaNy should always militate against clessNcatfon of documenls or continued embargo on raclasslltcation of security documenls in Instances of suspicion of criminality. The responsibility of classlgcatian snd rsciasstficagonreels with theauthor of thedocumentor Ihe Head of Ihe Institution where the document originates, which In this Instance Is the Divisional Commissioner-SAPS-CI or lhe National Comrnlssloner of SAPS. The MtSS document Instructs that the Head of the Institution must on a regutsr basis test classification ol documents generated in Ihe Institution, and furlher that over-classification of documents gag be guarded against 3.3 I n i nstances of suspicion ot criminality Involving classNed documenls, the Divisional Commissioner andlar Ihe National Commissioner are duty4ound to reconsider earlier ciassltlcagan of documents and shauld be Inclined in favour of declassification of documents In order to allow for proper and unhindered Investigation and passible criminal prosecution. am of Iha opinian that reclassNcation tor the purposes of criminal Invesbgatton and prosecution Is an injunctionIo the Divisional Comntlsstoner andiar the National Commissioner CONFIDENTIAL CONF)OENTIAL 3 OIQNSsIrrerOJ4ltlf45 41 At+eh2011 oerlutNcalhw erpacueoals lo ee ceste+ ef soog AfricanpoNcosavka coffee tntelllsence ~~ and that lt shoukl only be during the process of declassNcafion that the Glvtsfonal Commissioner andfor National Commissioner should consider measures that may be put ln place to mitigate possible adverse impact on the whole or part of lhe informaUon conlalned In the dsctssslfied document deemed to beof a sensitive nature, Such measures may include obllteragon of some of the IdsntlRcaUon of persons whose security may bs endangered by Ihe intended dectassllicabon. 3.4 O e c iassified documents must slill be accorded the attendant care and diligence. In the event that the criminal lnvesUgslion leads to court crlrninal proceedings there is nothing In law prohiblUng the Divisional Commissioner or the National Commissioner lo request lhe courts for a consideration of In~mere hearing for some parts of or lhe whole criminal hearing owing to the sensitivity of some or all of the InformaUon pertaining lo the criminal case. I em not aware of any criminal case that could not be proceeded with solely owing to the senslUvity of the Information. On the eetrary, court records are replete wilh Instances where the courts are given an opportunity lo determine the sensitivity of Information, and provide guidance end direction regarding further handling of the sensitive Information. It is absurd for an InsUIutlon to refuse dectasslllcation of documents for purposes of processing of a criminal Invasfigafion or criminal trial, especially when the courts have always been willing to put measures in place to mitigate possible damage due to disclosure of senslgve lnformathn whilst at the same Urne ensuring the uetlnuafion of the criminal process. One such casa ls the Constltubonal Court cited as the IndependentItt Pty) Lld v The hfelster for Inteliigence, 2008 (8) BCLR 771 (CC) ewsp aper ( 3.5 T h e Constilullonai Court has on numerous occasions underscored the importance of foundational values underpinning our constitutional democracy, one of which Is accountability, transparency and openness in public InsUtutions. The MISS document further encourages reconcNlatlon between the requlremenls of sound administration on Ihe one hand and Issues of national security. Further, the MISS document Is not Intended lo deny amess to information but ralher Io regulate and control sensitive Information. The Divisional Commissioner and/or the National Comm issioner should thus as a first port of cail consider lhat the requested information Is decfesslfied, end that in the process of declassification consider putting conlrol measures In place to ensure Anther diligent bandfing of Ihe declassified documents, as opposed to outright refusal to downgrade or declassify info rmation. CONF IDENTlAL CONFIDENTIAL 4 OISIaa I~OpVlnod PdHocd 1dfd oocJoooIscodoaorDoc+nano Ia IhocasIodII orson ' Akicon polka sayko: crime laIodrponoo(SAps cs 3.8 I thas been Intimated lhat members of the IPID, as is the case with members of the 05ce of Ihe Inspector&eneral of Intelligence, have security clearance ta the level of Top Secret. The purpose oi Iha process of vetting of these members was to faciQate their work and area of responsibility, especially in instances such. as these, where lhe su%et of investigation Is a partly or wholly classified area. 3.7 I O p ine that ohaIges of defeating the endS Of juStcs may be COnSldered far any perSOnWhc IS an Impediment to Ihe investigation, which is under way, and driven by lhe IPID 4, CoIn n tents on Leffal Mandate of S4PS vts.li-vis Inspector General 4.1 N n dly be Informed that the issues on which my comments are sought are In my oplnhn, counterdntelligence measures lo which the legal mandate of lha Inspector-General of Intelligence does not extend. section 2 (3) of the National strategic Intalsgence Act 39 of 1994 provides that the SAPS ls empowered to deal with such counter-inlelligencematters and measures. The ONce of lhe Inspector-General of Intelligence (OIGI) Is not empoweIad by any Ieghtetion to prescribe on operational security matters pertaining lo custody of Information Including grading or degrading of classlgcathn. Intelligence and counter inleiligence operations pertaining lo national security and any attendanl classification and dectassNcation of Information falls within the exclusive purview of the Heads of Intelligence SeIvlces. In this instance, such prerogative lies with the Divisional Commissioner. SAPS-CI and/or the National Cornrnissioner of lhe South African Police Services SAPS. The OIGI should ba seen and understood as a Constitutional Oversight Structure Ihat sheN nol be Involved in decisionmaktng relating to day-tob:cr~ n i ULL NAMES ADDRESS RANK ANNEXURE "A" ANTHONY SEHASSTATES UNDER OATH INENGLISH. IAM AN ASSISTANT DIRECTOR ATTACHED TO THE NATIONAL SPECIALIZED tNVESTIGATION TEAM OF THE INDEPENDENT POUCE INVESTIGATIVE DIRECTORATE CUP ID) SITUATED AT CITY FORUM BUILDING 114 WADI BASTREET PRETORIA. MY CONTACT NUMBERS ARE 0123990225AND 0847507145, I Ahl THE I/O IN THEABOVEMENTIONEDCASE, ON 13DECEMBER 2017 A MEETING WAS HELD AT THE COURTYARD HOTEL C/0 HILL AND PARK STREETS ARCADIA PRETORIA. PRESENT AT THE MEETING WERE SENIOR MEMBERS OF SAPS CRIMEINTELLlGENCE DIVISI ON, TOP MANAGEMENT OF SAPS,THE POLICE MINISTER'S ADVISOR AND THE OWNER OF A COMPANY CALLED BRAINWAVE PROJECTS1323CCTRADING AS I.VIEW INTEGRATED SYSTEMS. THIS PRACTICEIS HIGHLY IRREGULAR FOR THE hII NISTER'S ADVISOR TO ATTEND A PROCUREMENT MEETING WITHSAPS MANAGEMENT AND THIS HAS RAISED SUSPICIONS. DURING PRELII/IINARY INVESTIGATIONS AND AFTER RECEIVING RELIABLE INFORMATION IT WAS ESTABLISHEDTHAT THE PURPOSE OF THE MEETING WAS TO DISCUSS THE EMERGENCY PROCUREMENT OF A CELLPHONE GRABBING DEVICEAT A BLOATED AMOUNT OF 145 000090.00.THE DEVICE WOULD COST AROUND R700000MO THROUGH NORMAL PROCUREMENT PROCESSES FROM OTHER SERVICE PROVIDERS. FURTHER INFORMATIONINDICATED THAT NQ NEED EXISTED FOR THE EMERGENCY PROCUREMENT OF THE DEVICE AND NO NEEDS ANALYSIS WAS CONDUCTED BY THE COMMANDER OF THE UNIT RESPONSIBLEFOR PROCURING SUCH DEVtCES.HE WAS ALSO NEVER INFORMED. ITISCLEAR THAT NEITHER NORMAI.TENDER PROCESSES NOR EMERGENCY PROCUREMENT PROCESSES WERE FOLLOWED AND NOPROPER APPLICATION WAS MADF THIS PRACTICE IS HIGHLY IRREGULAR WITHIN THE SAPS PROCUREI/IENT PROCESSES AND IS tN CONTRAVENTION OFTHE PUBLIC FINANCE MANAGEMENT ACT. VIDEO FOOTAGE OFALI.THE MEMBERS PRESENT AT THE MEETING ' DIVASALREADY OBTAINED FROM THE HOTEL AFTER THEY BECAME AWARE OFTHE PROBE BY IPlD THEY ABANDONED THE PROCUREMENT PROCE)S AND AFEW DAYS LATER MEDIA REPORTED ON THE ATTENDED FRAUD AND CORRUPTlON.~ 4v~~v ~ NUMEROUS ATTEMPTSAND REQUESTS WERE MADE IN TERMS OF THE IPID ACT,ACT1 OF 2011,TO OBTAIN THEIRSTATEMENTS AND COOPERATION, BUT TO NO AVAtL.A COPY OF THE REQUEST LETTER AND THE RESPONSE ISATTACHEDHERETO AS PERANNEX "C" MANAGEhKNT OF CRIMEINTELLIGENCE OF THE SAPS TOGETHER WITH THE TOP MANAGERS OF SAPS ARE DELAYING THE COURSE OF THISINVESTIGATION BY REFUSING TO SUBMIT STATEMENTS AS REQUESTED ANDARE SAYING THE INFORMATION ARE CLASSIFIED. IT ISNOT CLEAR HOW REQUESTING A STATEMENT EXPLAINING THE AlTENDEES INVOLVEMENT IN THE MEETlNG,IS DEEhlED TO BE CLASSIFIED. POINT3.4OF CHAPTER2 OF THE MINIMUM INFORMATION SECURITY STANDARDS (MISS) DOCUhlENT ARE CLEAR ANDREADS AS FOLLOW: SECURITY MEASURES ARE NOT INTENDED AND SHOULD NOT BE APPLIED TO COVER UP MALADMINSTRATION, CORRUPTION, CRIMINAL ACTIONS,ETC, OR TO PROTECT INDIVIDUALS/OFFICIALSINVOLVED IN SUCH CASES. THE FOLLOWING DESCRIPTIONS SHOULD BE UNDERSTOOD ACCORDINGLY.A COPY OF THE MISS DOCUMENTS IS ATTACHED HERETO AS PER ANNEX • aAlt HEREWITH IREQUEST THE HONOURABLE COURT TO GRANT THIS SUBPOENA IN TERMS OF SECTION 205 OF THECPA,ACT 51/I977,TO COhlPEL GENERAL SITOLE TO SUBMIT HIS STATEMENT FOR THE PURPOSES OF THISINVESTIGATION AND/OR APPEAR BEFORE A MAGISTRATE TO EXPLAIN HIS REASONS FOR NOT DOING SO. IKNOW AND UNDERSTAND THE CONTENTS OF THIS STATEh1ENT. IHAVE NO OBJECTIONS TO TAKING THE PRESCRIBED OATH. IFIND THE PRESCRIBED OATH AS BINDING ON hlYCONSCIENCE. A SEHAS I CERTIFY THAT THE ABOVE STATEMENT WAS MADE IN hlY PRESENCE AND THE DEPONENT ACKNOWLEDGES THAT HE KNOWS AND UNDERSTANDS THE CONTENTS OF THISDECLARATION. THE STATEMENT WAS SWORN TO BEFORE ME AND THE DEPONENT SIGNATURE PLACED THEREON INMY PRESENCE ATPRETORIA ON ~rr-o~ -Z y AT f a do~ p CO MISSIONEROFOATHS TCM • g cv ~ ~ FULL NAMES RESS RANK Nl5 RESTRICTED 24 1.8,5 Fi l e s . A clear distinguishing mark, the significance of which is known to those who deal with the file concerned, should be placed on both the front and the back cover of Secret or Top Secret files. Note:For an explanation of the classifications, see Chapter 2, Definitions. ACCESS TO CLASSIFIED INFORINATION The general rules and prescriptions as to who may have access to or inspect classified matters are as follows: A person who has an appropriate security clearance or who is by way of exception authorised thereto by the head of the institution or his/her delegate (see Chapter 5, paragraphs 3.6, 10.2 and 10.3), with due regard being paid to the need-to-know principle. 2.2 Persons who must necessarily have access to that classified information in the execution of their duties (the need-to-know principle) - on condition that a suitable clearance has been issued or authorlsation has been granted, as explained in Chapter 4, paragraph 2,1. Persons such as stand-in typists/secretaries and personnel at smaller centres w ho in general do nothave access to classified material and who do nothave a relevant security clearance, but are expected to have access to this information on an ad-hoc basis owing to the circumstances, on condition that the prescribed oath/declaration of secrecy was taken. HANDLING OF CLASSIFIED DOCUINENTS 3.1 All classified documents must be stored in accordance with instructions while not in use (see Chapter 4, paragra ph 10). RESTRICTED Cp Yll RESTRICTED CHAPTER 5 PERSONNEL SECURITY' GUIDELINES WITH RESPECT TO SECURITY VETTING INTRODUCTION Security vetting is the systematic process of investigation followed in determining a person's security competence. The degree of security clearance given to a person is determined by the content of and/or access to classmed information entailed by the post already occupied/to be occupied by the person. A clearance issued in respect of a person is merely an indication of how the person can be utiiised, and does not confer any rights on such a person. A declaration of secrecy should be made on an official form by an applicant to any government post, before he/she is appointed or during the appointing pl ocess. Political appointees (Director Generals, Ambassadors, etc) will not be vetted, unless the President so requests or the relevant contract so provides. From the lowest level up to Deputy Director General all staff members and any other individuals who should have access to classified information, must be subjected to security vetting. A security clearance gives access to classified information in accordance with the level of security clearance, subject to the need-to-know principle. VETTING CRITERIA RESTRICTED RESTRlCTED 52 Vetting/screening criteria need to be adjusted continuously owing to the development in the political field and changes in the social and socio-economic fields. On a macro level, screening criteria must be adjusted to the norms and values of the community of which the person is a part. However, on the micro level, screening criteria must provide for the unique nature of individuals and organisations. The overall picture of an individual's security competence (which is the result of individual differences and the individual's unique way of handling situations) has to play a determining role in a vetting recommendation/decision. Aspects such as gender, religion, race and political affiliation do not serve as criteria in the consideration of a security clearance, but actions and aspects adversely affecting the person's vulnerability to blackmail or bribery or subversion and his loyalty to the State or the institution do. This also includes compromising behaviour. SECURITY SCREENING IN RESPECT OF IMMIGRANTS AND PERSONS WITH IHORE THAN ONE CITIZENSHIP Confidential Clearance. A confidential clearance may be considered in respect of an immigrant who has been resident in the RSA for ten consecutive years of which at least those five years preceding the clearance were spent as a South African citizen. He/she must provide sufficient proof that any former citizenship has been relinquished. Secret Clearance. A secret clearance is only considered in respect of an immigrant who has been resident in the RSA for fifteen consecutive years of which at least those ten years preceding the clearance were spent as a South African citizen, also on the condition that the person has relinquished his/her former cIzenship. RESTRICTED RESTRICTED 53 Top Secret Clearance. After an immigrant has been resident in the RSA for a period of twenty consecutive years (of which fifteen years were spent as a South African citizen), a top secret clearance may be considered, on the condition that such a person has relinquished his/her former citizenship. Every case will be dealt with on merit owing to the unique nature of each situation. This means that not all immigrants who comply with the requirements will automatically qualif'y for a top secret clearance. Dual Citizenship. Each application for a security clearance in respect of persons with dual citizenship must be assessed on the merits of each individual Persons without valid Identification Documents. No clearance can be issued in the following cases: 3.5.1 Any p erson who is not in possession of a valid identification document or residence permit for the RSA. 3.5.2 Nat u ralised RSA citizens who have not applied for a new identification document after naturalisation, since the document that was issued before naturalisation expires on naturalisation. Employing Immigrants who do not meet Clearance Requirements. If on account of his/her indispensable expertise, it is considered essential to employ an immigrant while he/she does not satisfy the clearance requirements as laid out above and he/she is to be utilised in a post, the work of which is classified, the vetting authority will be unable to make a positive recommendation with regard to the issue of a security clearance in respect of such a person, but can merely institute an investigation to determine whether such an immigrant is suitable from a security point of view for the post concerned. In such an event the head of the employing institution may authorise that the immigrant be used RESTRICTED RESTRICTEO 54 in the post (see Chapter 5, paragraph 10.2), on the condition that the employing institution must submit a certificate to the National Intelligence Agency and the responsible screening institution in which the absolute necessity of employing such immigrant is set forth and it is also declared that no RSA citizen with the same expertise is available or can be recruited in the RSA and, in cases where an immigrant from a state formerly seen as controversial has been employed, that an immigr antfrom a non-controversial country could not be obtained; provide the responsible screening institution with a description of and an indication of the sensitivity of the responsibilities attached to the post to be occupied by the immigrant; declare that it accepts full responsibility for compliance with the security requirements connected with the employment of such immigrant; ensure that no classified information or material that is not needed for the performance of his duties comes into the possession of the incumbent of the post; and reconsider the authorisation every year and relate in writing to both the National Intelligence Agency and the responsible screening authority any incident which could pose a threat to security or any incidence which may bring his/her security competence into question. 3.6.1 Tak e n o te: When the person concerned changes his/her posting, the authorisation is automatically terminated. In respect of immigrants already employed in sensitive positions and in whose case the conditions laid out in Chapter 5, paragraph 3.6 above have not yet RESTRICTEO RESTRICTED been complied with, the employing institution must immediately give effect to those conditions as set out in paragraph 3.6. SCREENING / VETTING OF PERSONS W H O H A V E LIVED/WORKED ABROAD FOR LONG PERiODS 4.1 Where a security clearance is required for an RSA citizen who has resided/studied/worked abroad for a long period (excluding transferred public servants or students) and who applies to a governme nt or semi-government institution or a national key point for employment, such a person is temporarily not eligible for any grade of security clearance. Applications for clearance can, however, be considered after a period, as set out hereunder, on condition that the applicant did not give up RSA citizenship or accepted dual citizenship during the period of absence: 4.1,1 A C o nfiidential clearance after one year back in the RSA. Such a person can be appointed on condition that a re-application is submitted after one year. On appointment, the subject thus completes and submits all relevant forms for a security clearance. The requesting authority will then be informed as to whether or not there is any negative information on the subject. The subject is also to undertake, in writing, that he/she will resign should the issuing of a security clearance be refused after one year. If such an undertaking is not specifically included in the service contract, a written undertaking to this extent, under signature of the subject, must accompany the application for a security clearance. 4.1.2 A Se c ret clearance after three years back in the RSA. 4.1.3 A T o p Secret clearance after five years back in the RSA. RESTRICTEI3 RESTRICTED 56 SECURITY SCREENINGS: CONTRACTORS SUPPLYING SERVICES TO G O V E R NIIENT D E P A RTIIENTS O R O TH E R G O V E R N WIENT INSTITUTIONS The onus is on the departmen t/institution concerned in each case to indicate expressly in documents sent to the State Tender Board or private contractors whether there are security i mpli cationsthat should be taken into account in advance when they perform their duties for the department/institution involved. lf there are such implications, reasons must be given for the inclusion of a clause in the tender document indicating the degree of clearance required, as well as a clause to ensure the maintenance of security during the performance of the contract. The clause could read as follows: "Acceptance of this tender is subject to the condition that both the contracting firm and its personnel providing the service must be cleared by the appropriate authorities to the level ofCONFIDENTIAL/SECRET/TOP SECRET. Obtaining a positive recommendation is the responsibility of the contracting firm concerned. If the principal contractor appoints a subcontractor, the same provisions and measures will apply to the subcontractor. Acceptance of the tender is also subject to the condition that the contractor will implement all such security measures as the safe performance of the contract may require." The security responsibilities of the contractor wi'll be determined by the department/institution concerned. PROCEDURE FOR REQUESTING SECURITY SCREENINGS RESTRICTED RESTRICTED 57 Requests for security screening and re-screening must be submitted to the appropriate screening authority on the prescribed form (see Appendix D) accompanied by a set of clear fingerprints. The requesting institution should provide the screening authority with a post description of the employee concerned and an indication of the access he/she has/will have and with all other facts that may influence the issue of a clearance. PERIOD OF VALIDITY OF SECURITY CLEARANCES The head of an institution or his/her delegate must ensure that an officer in respect of whom a security clearance of Secret or Top Secret has been issued, is rescreened every five (5) years and every ten years in respect of a Confidential clearance. 7.1.1 Enq u iries will be done with the supervisor every five (5) years with respect to the security competence of an official who has received a Confidential clearance. 7.1,2 Thi s arrangement does not preclude rescreening before a period of five years has lapsed in the case of occupational change or where something prejudicial has been established about an officer which may affect his or her security competence. Personnel in ultra sensitive posts should be cleared every three years. TRANSFERABILITY OF CLEARANCES 8.1 A security clearance issued in respect of an officer while he/she is arched to a particular institution is not automatically transferable to another institution, for example when the officer is transferred. When an officer changes his e loyer, RESTRICTED RESTRICTED 58 the responsibility for deciding whether an applicant's existing clearance will be accepted or whether the rescreening of such an officer will be requested in the prescribed way rests with the new employer. However, for the purpose of meetings and other co-operative functions clearances are transferable. The employing institution is responsible for informing the chairman of such a meeting in writing as to the level and period of validity of the clearances of the representatives involved. RESPONSIBILITIES OF THE SCREENING AUTHORITY 9.1 The screening authority will investigate and advise on the security competence of a person on the basis of prescribed guidelines. After the investigation the screening authority will merely make a recommendation regarding the security competence of the person concerned to the head of the requesting institution, and this should in no way be seen as a final testimonial as far as the utilisation of the person is concerned, 10. RESPONSIBILITIES OFTHE HEAD OF THE REQUESTING INSTITUTION 10.1 The head of an institution or his delegate must make a decision and issue a clearance after receiving the recommendation made by the screening institution, and in accordance with circumstances/information at his/her disposal. 10.2 Not w i thstanding a negative recommendation from the screening authority, for whatever reason, the head of the institution may still, after careful consideration and with full responsibility, use the person concerned in a post where he/she has access to classified matters if he/she is of the opinion that the use of the RESTRICTED RESTRICTED 59 person is essential in the interest of the RSA or his/her institution, on the understanding that a person satisfying the clearance requirements is not available. 103 Whe n any person is utilised without a clearance, the responsible screening institution and the National Intelligence Agency must be furnished every year with a certificate regarding such person's security conduct (see Chapter 5, paragraph 3.6). Any conduct entailing a security risk must be reported immediately to the screening authority concerned (also see Chapter 9: Breaches of Security). 10.4 Hea d s of institutions whose officers attend meetings where classified matters are discussed must inform the chairperson of such a meeting in writing of the level of security clearance of such officers. It is the responsibility of the chairperson to satisfy himself/herself regarding the security clearance of all those present at the meeting. 10.5 Fur t her, it is also the responsibility of the head of the institution or his/her delegate to ensure that there is continuous supervision of persons in respect of whom security clearances have been issued; present security awareness programmes for his/her employees and to warn staff m embers no t t o su p ply p e rsonal particulars of colleagues/officers to unauthorised persons; ensure that persons dealing with classified matters sign the prescribed declaration of secrecy (see Appendix B, a draft declaration that can be modified to suit the requirements in each particular case); RESTRICTED RESTRICTED 60 pertinently bring to the attention of the officers working with classified matters any other legislation, regulation and/or orders that entail secrecy and/or the protection of activities, installations, etc, of any particular institution. to point out to employees dealing with classified matters when they resign or leave the service that they will continue to be the target of foreign intelligence services and that they remain subject to the declaration of secrecy. to ensure that all classified documents in the possession of the person concerned are returned when such person resigns or leaves the service; and to ensure that no information comes into the possession of an individual that is not essential for the performance of his or her duties. RESTRICTED RESTRICTED OFFICERS TRAVELLING ABROAD 11.1 In t h e event where an official with a clearance travels abroad, the head of the institution employing the official or his/her delegate must keep a thorough record of such visits. 11.2 Whe n officials are travelling abroad they must be on their guard against any attempt by a foreign intelligence service to recruit them. If a person is approached, he or she must, i mmediately on returning, report the fact to the head of the institution or his/her delegate for transmission to the responsible screening authority and the National Intelligence Agency. While travelling, o5cials should maintain a low profile and be careful not to place themselves in compromising situations. 12. PROTECTION OF EXECUTIVE OFFICIALS 12.1 Since executive officials are constantly the target of enemies of the State, the necessary precautions should be taken to protect these officials against threats of blackmail or violence. Such threats should be reported to the NIA or the SAPS or the SANDF (Ml), as the case may be. The necessary precautionary and protective measures must be undertaken by the various institutions to ensure the safety of the officials concerned. More particulars in this regard may be obtained from the National Intelligence Agency. RESTRICTED RESTRICTED STATUTORY AND O T HER PROVISIONS FOR THE PROTECTION OF INFORMATION The attention of all persons dealing with classified matters should be drawn specifically to the provisions of the Protection of Information Act i,'No 84 of1982) as amended. 13.2 Any other legislation, regulations and/or directives relating to secrecy and/or the safeguarding of the activities, installations, etc of a particular institution must also be speciTically brought to the attention of officers dealing with classified matters. RESTRICTED