The leaked tapes – More questions than answers

The Morupisi, Butterfly and National Petroleum Fund (NPF) cases were begun on no evidence. According to assistant Director of Public Prosecutions (DPP), Priscilla Israel, the cases were investigated backwards. That much, is clear from the leaked tapes. I cannot recall how many times I have complained about this horrendous practice, both inside and outside the courts. Same raises public expectations by peddling unverified evidentiary material, as evidence. Once the State has committed, it becomes difficult to retreat, in light of public expectations, and fears of sanction. The State, therefore, engages in a campaign of malicious prosecution as a face saving measure. In the NPF case under reference, we spent the first three years dealing with a charge sheet, that changed colours like a disco light.

Attorney Israel, characterises their approach as a prosecution guided investigation (PGI). The practice is unknown in our justice system. I dare say, it is downright illegal. The powers of the DPP are spelt out, under Section 51 (a) of the constitution. Guiding investigations is not one of them. As such, the meeting, was illegally constituted. Investigations and intelligence, are matters between the Directorate on Corruption and Economic Crime (DCEC) and the Directorate of Intelligence and Security (DIS). The DPP acted ultra vires.

But why? Why would the DPP step out of its mandate to guide investigations? They have many lawyers at the DCEC, and in fact, Learned attorney Joao Salbany was two classes ahead of Israel and I, at law school. He is very senior to her. Attorney Andre German graduated around the year 2005. Besides, Salbany has practised criminal defence all his life. We have had countless fights in the Courts in my other life, as a prosecutor. Why would all the senior lawyers namely, the Director of Public Prosecution Stephen Tiroyakgosi,

Ernest Mosate, Israel and Salbany, and German, amongst others, not have the fortitude to point out the obvious anomaly? Between them all, there is enough wealth of experience to have seen that anomaly a mile away. Prosecution guided investigations exist, as a matter of fact. They are common, amongst others, in the United States of America. They are certainly, outside our constitutional and legislative framework.

Frankly, I do not know why they all chose to sit like wet fowls, and to let the whole charade, gain currency. In interrogating this question, one must ask the question as to who invited who, into the investigation process. Was it the DPP that imposed itself in the investigation process? Was it the DCEC, that asked to be led? Either way, nothing makes sense.

Section 51 (a) of the Constitution, prescribes that in the discharge of his professional functions, the DPP shall not be under the control of any person or authority. The DPP, the Administration of Justice, and the Auditor General, have absolute constitutional independence. How was a prosecution begun without a docket, and according to the DCEC, on absolutely no evidence. DPP Tiroyakgosi, boasts nearly 30 years of post qualification, legal experience, mostly as a prosecutor. We worked together and he was very senior to me. Attorney Israel has been prosecuting for 21 years. I was very senior to her. To register charges without a docket is way below them. Under whose dictation, if any, were they acting?

There is something even more queer about it all. That is, to hear the DCEC officers asking for evidence from the DPP. It should in fact be the other way round. Attorney Salbany comes out guns blazing, asking the DPP, to discover. On the other side, Israel, emphatically demands that the DCEC must discover, to which demand the DCEC say they have nothing. Let us be mindful, on this score, that it is the prosecutors decision to charge. To charge, the prosecutor must have a docket, even if incomplete. The prosecutor must assess the available evidence and must be satisfied that the legal threshold for the invocation of the DCEC’s powers can be met. On this score, the DCEC must be absolved.

Ironically, Israel states that they never had anything in their possession as the DPP. Put simply, the DCEC, have nothing, and the DPP have never had anything in their possession. Yet, the DPP charged. The DPP quips; “I was misled”.

What do parties do, when they find themselves in this kind of conundrum. Do they resign their jobs? Do they withdraw charges? Do they fabricate evidence to cover up? The DPP must withdraw. This is a national embarrassment. Imagine Bridgette Motsepe and the South African government listening to the tapes after the diplomatic tiff the case generated. The DPP’s case, even before the revelations, has been, to borrow from Shakespeare, like, “a tale told by an idiot. Full of sound and fury; signifying nothing”.

Now, the tape is certainly not recent. In the tape, the DPP speaks to the need for him to make a decision ahead of a Court appearance on a “Monday”. According to my research, the last time the so called Butterfly case came up on a “Monday”, was on August 17, 2020. The Meeting was certainly therefore in the preceding week beginning August , 2021. You can even hear the participants in the online tapes published by Ink Centre For Investigative Journalism, discussing what they would tell the Magistrate in order to buy time. The prosecution has been holding out a lie to the Court, and to the public, for at least seven months.