Menzi Simelane is accused of withholding evidence and refusing co-operation
Paul Botes

The former acting national director of public prosecutions had to write an angry letter to the justice department over Menzi Simelane's actions.

The overall head of the now disbanded Scorpions unit became so frustrated with former justice department director general Menzi Simelane's apparent attempts to block serious investigations into the arms deal that he wrote an angry letter to the justice minister to complain.

Documents leaked to the Mail & Guardian reveal how the former acting national director of public prosecutions, Mokotedi Mpshe, wrote to the then Justice Minister Brigitte Mabandla in 2007. The Scorpions, or the Directorate of Special Operations (DSO), was a unit of the National Prosecuting Authority (NPA), which Mpshe then headed in an acting capacity.

The Scorpions were investigating the multibillion-rand arms deal, as were a number of foreign agencies.

Simelane was also blocking a request from German authorities for co-operation in investigating corruption in South Africa’s arms deal, wrote Mpshe. German investigators requested formal mutual legal assistance in investigating the South African government’s purchase of four corvettes for R6.9-billion.

The German probe into whether bribes were paid to South African government officials and others by the German frigate consortium was already at an advanced stage.

Mpshe complained to Mabandla about how there was a “pressing need” for Simelane to refer the formal German mutual legal assistance application to the Scorpions.

The elite corruption-busting agency was already investigating allegations around the purchase of the corvettes, Mpshe wrote.

Despite an agreement reached with Simelane to hold a meeting on this urgent matter, such a meeting had not transpired, he said.

Embarrassing lack of action
Instead, Mpshe said the Scorpions had not been provided with the German request for mutual legal assistance, either with a view to investigating the matter or to assisting the German authorities.

“In my opinion, the failure by any South African investigating agency to investigate the reported allegations of grave criminality committed in our country, or that is justiciable in our country, is becoming ever more embarrassing,” wrote Mpshe. “The apparently damning evidence at the disposal of the German authorities cries out for investigation. The failure to do so is indefensible.”

Mpshe also complained about the lack of co-operation from Simelane in the Scorpions’ own investigations into the arms deal: “The fact that the DSO has been unable to obtain evidence from the department of justice that apparently relates to an existing DSO investigation is equally inexplicable and embarrassing.”

Mpshe requested that the German mutual legal assistance application, and Simelane’s queries in reply to the application, should be forwarded to him so he could hand it over to the Scorpions.

“In any event, the DSO must diligently proceed with its investigation regarding the corvettes,” wrote Mpshe.

It is unclear what exactly transpired after Mpshe’s letter, but it is clear that the Germans never got their co-operation agreement.

Ironically, it was Mpshe who in 2009 went on to drop corruption charges related to the arms deal against President Jacob Zuma. Mpshe could not be reached for comment at the Land Claims Court, where he is now an acting judge.

Silent
Simelane is keeping mum on the issue. “If it’s about the arms deal, I have nothing to say to you,” said Simelane this week, before hanging up. He later responded to emailed questions sent to him by the M&G, and asked for them to be directed to the justice department, which has yet to respond.

In October last year, Simelane was summarily axed from his post as national director of public prosecutions. This was after the Constitutional Court confirmed a Supreme Court of Appeal ruling in favour of the Democratic Alliance (DA) that President Jacob Zuma’s decision to appoint Simelane to the post was invalid.

The DA had contended in its court papers that Simelane was not “fit and proper” for the job because he lacked integrity and did not respect the institutional independence of the NPA. 

After disappearing from the public eye, Simelane popped up again last month, when it was reported he had been deployed by the justice department to act as a legal adviser to Public Service Minister Lindiwe Sisulu.

The M&G has found that Simelane also played a key role in stymying the United Kingdom’s Serious Fraud Office’s request for mutual legal assistance. The office’s investigation involved the contract awarded to a consortium headed by British Aerospace (BAE) for the South African government’s purchase of 52 Hawk trainer aircraft and Saab-Gripen fighter jets.

The mutual legal assistance request from the Serious Fraud Office was made to Mpshe in 2007. It was sent by its director, Robert Wardle, who claimed arms consultant Fana Hlongwane was paid £5-million (about R65-million at the time) in connection with the BAE contract, according to documents seen by the M&G.

Questions remained about when Hlongwane ceased to be an adviser to the then Defence Minister Joe Modise, Wardle’s letter stated, and formal legal assistance was required in obtaining banking documentation from Hlongwane’s Nedbank account.

Hlongwane’s lawyer, Christo Stockenstrom, said this week that the accusations that his client had taken bribes were false. “He was simply paid money for services rendered,” he said.

Hearings postponed
However, South Africa has not yet explored the allegations about Hlongwane, who was to be subpoenaed to the Arms Procurement Commission for its public hearings earlier this year. But commission chairperson Judge Willie Seriti said he could not be traced to serve the subpoena. The hearings, which were due to start in March, have been postponed to August.

Documents seen by the M&G reveal that in March 2008 Simelane responded in a chastising tone to Wardle, five months after the Serious Fraud Office first sent its legal assistance request to South Africa.

“Your request for mutual legal assistance directed to the acting national director of public services, advocate Mpshe, and the subsequent engagement between your office and the National Prosecuting Authority pursuant thereto, does disturb me,” wrote Simelane. “First, it undermines the co-operation already under way between your office and our police services. Second, the request was deliberately sent to an official not authorised and/or entitled to exercise the functions of the central authority in the Republic of South Africa.”

Last week, the M&G disclosed that a team from the Arms Procurement Commission had met a wall of suspicion from German prosecutors during its visit to their Munich office last year, primarily because South Africa had rebutted their earlier request for mutual legal assistance.

The commission, which was set up by President Jacob Zuma in 2011 after a court case by former banker Terry Crawford-Browne forced his hand, came home empty-handed, after being told to begin official mutual legal assistance proceedings to obtain crucial documents.

The M&G published a story two weeks ago outlining how the German investigation had allegedly implicated a member of the government’s current defence review committee, Tony Yengeni, in the signing of a R6-million “bribe agreement” with an arms bidder. Yengeni declined to deny or confirm the allegation.

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With acknowledgement to Glynnis Underhill and Mail & Guardian.