‘Fingers point to Keetshabe in DIS, DCEC clash’

Mpho Mokwape | Monday July 8, 2024 06:00

Justices Isaac Lesetedi, Baaitse Nkabinde and Edwin Cameron said the AG (who at the time of the clash between the two organs was Abraham Keetshabe), acted nonchalantly to provide legal direction between the DIS and the DCEC to avoid escalation of the matter. The AG, representing the DIS, had approached the apex court seeking to overturn a High Court decision that made orders to protect the DCEC from the DIS invasion. This was because in 2022, the DCEC offices were raided and barricaded by the DIS while its then Director General (DG), Tymon Katlholo, was outside the country on official duty. The impasse between the two and its DG had allegedly been brewing for a while with allegations of the DIS fearing investigations carried against its officers and its DG, Peter Magosi by, the DCEC. The takeover of the DCEC offices by the DIS raised many questions about the mandate of the two organs, especially the conduct of the DIS and whether it was above the law.



The judgment

Now, questions have been answered with the CoA rebuking the action of the DIS by telling the AG he should have acted swiftly to diffuse the situation before it escalated. In the judgment, the Justices of the CoA made sure to clearly state that the former AG, Keetshabe, was to blame for the impasse that happened between the two organs. Katlholo, who was alleged to have cried numerous times to Keetshabe to protect him and his office from the DIS, and his failure then forced the DG Katlholo to approach the court for protection. According to Justice Lesetedi, the AG was lukewarm in rising to the occasion in what was clearly a concerning serious conflict between two security agencies of the country and by his own affidavit he had informed Katlholo that he was unaware of the developments and would find out what happened. “It is common cause that when the DCEC DG learned of the developments and being alarmed, he telephoned AG. It is clear he expected the AG to intervene and prevail upon the DIS to desist from its conduct,” said the judgment.

He explained that the following day, Katlholo had made a follow up call to the AG and the latter’s response was that he had spoken to the Director of Public Prosecutions (DPP) to check if he was aware of what had taken place and was still awaiting an update from the DPP. The judge stated that a day later, Katlholo once more made another follow up to which Keetshabe responded that he had not received information on the matter and therefore, not in a position to respond to him. “Even after receiving an email from Katlholo begging him to initiate legal proceedings on the DCEC’s behalf to restrain the DIS from its conduct, it is apparent that the AG took a view that the matter was not urgent and does not take instructions from government departments,” Justice Lesetedi said. Justice Lesetedi stated that Keetshabe had at the time told Katlholo that he does not take instructions from government departments as to whether to take legal action or not in matters where one agency of government was alleged to encroach adversely into the mandate of another. He revealed that this was despite Katlholo having insisted that the actions of the DIS were unlawful in that the DIS did not have the mandate to seal the offices of the DCEC in search of the files, which had nothing to do with the mandate of the DIS. “There does not seem to have been any action on the part of the AG to engage the DIS DG to find out the cause of his intrusion or to even advise the two agencies on the scope and limitations of the statutory mandate of each of them. Such exercise, properly embarked upon, would have likely resolved the impasse without the need for legal action,” he said.



Statutes of DIS, DCEC

On the statutes governing each of the two agencies, Justice Lesetedi said there was no dispute that the DIS sealed off the office of Katlholo and his staff officer purportedly to secure at least the file relating to the procurement of a tender in which Seleka Springs was an agent for the supplier of the project. He explained that the averments of Katlholo that the sealed offices also contained other investigative files including those involving senior members of the DIS had not been seriously disputed. Justice Lesetedi stated that the AG conceded during the appeal that there was no statutory mandate for the DIS to investigate alleged acts of corrupt practices and those investigative powers for such offences fall within the mandate of the DCEC. “Part III of Corruption and Economic Crime Act (CECA) is instructive on that. The AG was unable to draw the court’s attention to any provision of the Intelligence and Security Service Act (ISSA), which empowers the DIS to investigate alleged acts of corruption let alone to play a supervisory role over the DCEC and made this concession in the face of that predicament,” he said.

The judge further said that the AG had conceded that the DIS, being a creature of statute, can only lawfully carry out acts and exercise powers which are either expressly conferred on it by statute or, by necessary implication can be held to be lawfully exercised by it. Justice Lesetedi pointed out that Section 6 of the ISSA, the office of DG is established and his mandate is the responsibility for the direction, control, administration and expenditure of the Directorate. He added that broadly and in summary therefore, the functions and powers of the DIS are (a) Intelligence gathering, dissemination and advising government, its specified offices and functions on matters of national security, (b) Providing protection to specified persons (VIPs) and (c) Carrying out such other functions and duties as the President may from time to time determine to be in the national interest. “In addition to these, the DIS has incidental powers, under Sections 21 and 22 of the ISSA of search, seizure and arrest. But these too are only in due execution of its functions under ISSA. By Section 23, it is an offence to obstruct a DIS officer where such officer is acting in due execution of his or her duties under the Act,” he stated. Further, the judge noted that the functions and powers of the DIS are limited and do not permit general investigating powers of the police or even to that of other crime fighting organisations was apparent from the ISSA.

He emphasised that as such the DIS has no supervisory powers over other organisations or agencies. On the other hand, Justice Lesetedi explained that the investigation of corruption is in terms of Section 6 of the CECA, the core mandate of the DCEC. “The functions include, for example, the power to receive and investigate any complaint alleging corruption in any public body to investigate any conduct of any person, which in the opinion of the DG may be connected with or conducive to corruption, to educate the public against the evils of corruption and to enlist and foster such public support in combating crime,” he said. The judge noted that it was thus no wonder that, as mentioned by Katlholo, the same public has cried out what it perceived to be the DCEC’s abdication of its mandate. He stated that similarly the powers of its DG are in line with the powers of a head of such an agency and that section of CECA is clear beyond the shadow of doubt as it prohibits any officer or the support staff of the DCEC from disclosing or using information gained by him or her by virtue of his or her employment otherwise that in the strict control of his or her official duties or with the authority of the DG

. “To do so constitutes an offence. The purpose of these provisions is equally clear, it is to promote the performance by the DCEC of its salutary functions by protecting the confidentiality and integrity of its investigations thus securing the information gathered against intrusive and obstructive inquiry and secondarily to preclude misuse or abuse of information its own personnel acquire in the course of those investigations,” Justice Lesetedi said. The judge said the mandate of the DCEC is one which is of international concern and that it will be inimical to those transnational protocols if the country, a signatory to the United Nations Convention Against Corruption and a member of both the African Union and SADC were to allow other law enforcement agencies or external bodies to interfere with the mandate of the DCEC and to compromise its functions and independence. In conclusion, Justice Lesetedi stated that in protecting the independence of the DCEC, Section 4 (3) of CECA provides that any decision including investigations by its Director General shall not be subjected to the direction and control of any person or authority. “The DIS is no exception to this prohibition and cannot lawfully interfere in any investigation or decision by DCEC or its DG,” the judge stated.