The Hawks first need to receive permission from police crime intelligence boss Lieutenant-General Richard Mdluli before they may approach a judge for the go-ahead to intercept a suspect’s phone calls, says Police Minister Nathi Mthethwa.
Mdluli has himself previously been the focus of a fraud and corruption investigation by the elite police unit. The charges were controversially withdrawn.
And the National Prosecuting Authority (NPA) has denied that its suspension of commercial crimes prosecutor Glynnis Breytenbach – who opposed the dropping of the charges – has anything to do with the Mdluli saga.
On Wednesday afternoon, Breytenbach, after a meeting with her legal team, asked the NPA to provide reasons for her suspension.
Her lawyer, Gerhard Wagenaar, said they would not accept the reason given by the NPA on Monday.
According to the NPA, Breytenbach was suspended because she had abused her power in the case related to the awarding of mining rights at Sishen to politically connected Imperial Crown Trading and Kumba Iron Ore.
Opposition MPs have rung alarm bells, calling for protection for Breytenbach – who has reported two attempts of intimidation against her – and for glaring questions in the saga to be properly answered.
On phone tapping, Mthethwa said on Wednesday: “Neither the head nor any other officer on the rank of major-general in the (Hawks) is… authorised in writing by the acting national commissioner to approve any application for an interception direction to the designated judge.
“Should an officer of the (Hawks) want to make an application for interception, it must be made through the crime intelligence division.”
This means no member of the Hawks can give the go-ahead when one of its members needs to apply to the designated judge for a so-called interception instruction – the judicial permission, required by law, before anyone’s telephone conversations can be legally tapped.
Mthethwa said investigators from other units were not authorised to make applications on behalf of the Hawks.
“In practice, however, all applications to the designated judge must be approved by an officer of the SAPS, which at present does not include any officer in the DPCI (Hawks).”
He was responding in a written reply to a question posed by DA MP Dianne Kohler Barnard.
“It reveals that the SAPS finds itself in the extraordinary situation of having Richard Mdluli in charge of approving any application for the interception of communications,” said Kohler Barnard.
“While any officer of the Hawks… may apply for interception, this application has to be approved, and neither the head of the Hawks nor anyone in the Hawks has the authority to approve any such application to the judge.”
Kohler Barnard said this put Mdluli in an extremely powerful position.
She is calling for the Mdluli saga to be subjected to “proper parliamentary scrutiny” – echoing others, including Cosatu, who have called for a judicial inquiry into the matter.
She said she would write to the chairwoman of the National Assembly’s police oversight committee, Sindi Chikunga, to ask for a special hearing on the Mdluli saga.
Wagenaar confirmed on Wednesday night that shortly before her suspension was confirmed on Monday, Breytenbach had handed a memorandum to acting NPA chief Nomgcobo Jiba, but he would not elaborate on its contents.
He did, however, confirm that the memorandum had to do with the investigation of the case against Mdluli no longer being pursued.
Under the RICA Act – which also regulates covert telecommunication interceptions – any police officer may approach the designated judge for an interception instruction. But before approaching the judge, the officer first needed permission from a senior officer, ranked at least at major-general, and who had written authorisation to give the go-ahead for such an application from the national police commissioner.
Political Bureau