The damning evidence against Phiyega and SAPS leadership

Read the presentation by Minister of Police to Parliament on the findings against suspended National Police Commissioner Riah Phiyega.

Currently, almost the entire national police management team are under investigation for their improper support of Phiyega in rejecting the findings of the Farlam Commission. SAPS is facing an unprecedented crisis in leadership and confidence. The summary execution of a violent criminal by a SAPS member in Krugersdorp has led to defiance by police trade unions in their support of their indicted colleagues. Justice Bert Bam of the South Gauteng High Court sentenced SAPS members to fifteen years each for the murder of Mido Macia.

In Cape Town, police have faced a community revolt in its Masiphumele informal settlement as a consequence of their failure to stem crime. The Masiphumele community demanded that one of their leaders charged with a vigilante murder be released. Meantime, Khayelitsha-based social movements such as the Social Justice Coalition and Equal Education point to Commissioner Phiyega’s dismissal of the O’Regan-Pikoli Commission of Inquiry recommendations not simply as a matter of the politicisation of SAPS, but a defiance of the Constitutional Court’s decision on oversight of the police by provinces. In the midsts of dealing with attacks on police and increasing violent crime, SAPS is seen daily on television screens as attacking student, worker and community protesters. The inquiry against Phiyega raises the question: why has the Minister and above all President Zuma waited so long to address the leadership crisis in the police? The summary of the findings below is shocking and the Minister of Police must publish the full report of his Minister Reference Group on Commissioner Phiyega.

Crime, Misconduct and Mismanagement

On 13 November 2015, Minister Nhleko presented a report to Parliament on the investigation that was done by the Ministerial Reference Group (MRG). The MRG was established in September 2014 to investigate complaints raised by management within the South African Police Service (SAPS) mainly against Commissioner Phiyega, and to hand over a report on their findings to the Minister of Police. The MRG was empowered to consider promotions and suspensions of senior members of SAPS; consider the status of senior members; consider the status of non-statutory SAPS members (members incorporated into SAPS from Umkhonto we Sizwe); evaluate the challenges facing Crime Intelligence; review allegations concerning the illegal rendition or expulsion of Zimbabwean nationals; and to evaluate allegations of improper human resource, disciplinary and performance management practices.

Based largely on 16 individual complaints, the report provided a damning critique of the suspended National Commissioner, Riah Phiyega. At least seven of the individual complaints related to unfair labour practices; three related to violation of the Public Finance Management Act (PFMA); and in at least one of the complaints Phiyega is accused of intentionally misleading Parliament. The most serious complaints include perjury and defeating the ends of justice.

Phiyega has been under fire since October 2013, when the Independent Police Investigative Directorate announced that they were initiating an investigation against her for defeating the ends of justice. She was accused of tipping off the then Western Cape Provincial Commission, Arno Lamoer, of the impending investigation against him by the Hawks for affiliation with a local drug dealer. This is one of the many complaints examined by the MRG. The MRG recommended that disciplinary action be taken against Phiyega.

Another complaint relates to the criminal case against the former head of Crime Intelligence, Richard Mdluli. In 2012 Mdluli was suspended with pay, after being charged with murder, fraud and corruption. In this complaint former Acting National Commissioner, Lieutenant-General Nhlanhla Mkhwanazi, alleges that Phiyega submitted an affidavit to the court in his name without his knowledge. She is also accused of wrongly informing the court that Mkhwanazi had not been the one to initiate disciplinary steps against Mdluli.

The report asserts that Phiyega brought SAPS into disrepute through her conduct and accuses her of perjury, or intentionally falsifying information before the court. It also found that Phiyega intentionally misled Parliament about the charges against Mdluli, and that her delaying of disciplinary proceedings resulted in fruitless and wasteful expenditure in violation of the PFMA. The MRG found that her conduct constituted a crime.

Another complaint by Lieutenant General Julius Molefe accuses Phiyega of ignoring sound legal advice and appointing legal counsel without going through the proper procedures. The report found that Molefe’s complaint was justified, and recommended that processes that relate to the sourcing of legal counsel be reviewed.

The report notes that the investigation was made more difficult by a lack of cooperation from Phiyega and her office. Furthermore, it alleges that some SAPS members were informed by their superiors not to cooperate with the MRG investigation.

The MRG recommended the establishment of three task teams. The first task team would be led by the Acting National Commissioner and look at providing placement and redress for Generals who are not posted, or negotiate exit packages where applicable. The second task team would be led by a retired Judge or Senior Advocate and look at formulating disciplinary action and criminal charges as recommended by the National Director of Public Prosecutions. The third task team would be led by a commercial crimes investigator to investigate cases of wasteful expenditure and other violations of the PFMA.

In April the Portfolio Committee of Police initially refused to pass SAPS budget after accusing Phiyega of being in violation of the PFMA. The report of the Marikana Commission, released by the President in June, found Phiyega unfit for office. In October, following the findings of a board of inquiry, the President suspended Phiyega. This report by the MRG seems to put the final nail in the coffin for her professional career. President Jacob Zuma, Cabinet and Parliament have a duty to conclude the investigations into SAPS senior management as a matter of urgency because a much harder task lies ahead. The task of professionalising SAPS, depoliticising the police service, addressing crime and winning the trust of communities.

Both authors work for Ndifuna Ukwazi. Views expressed are not necessarily GroundUp’s.