Gangster State
Page 10
Although the police had arrested Nokwanda and her relatives, it soon became apparent that the state did not have much of a case against them. By September, the NPA had not yet formally charged the five suspects. ‘[The state] is working full-time and uninterrupted to get the case trial ready,’ prosecutor Jannie Botha told the magistrate while arguing for a second postponement. 19 The matter was postponed to December.
The police, meanwhile, went on a wild and at times bizarre goose chase while Nokwanda and her co-accused were out on bail. In October, they exhumed Ngombane’s body after allegedly receiving information that suggested Nokwanda had hid the gun that killed him in the coffin. A police spokesperson said there had been ‘reasonable grounds [to believe] that the murder weapon had been concealed in the body or coffin of the deceased’. A thorough search of the coffin and an X-ray of the body, however, revealed no firearm. 20
Despite having no solid evidence, the state eventually charged the five accused with murder, obstruction of justice, and possession of an unlicensed firearm and ammunition. According to the charge sheet, the state’s main piece of evidence was a recording of Nokwanda’s emergency call to 10111 after the shooting. ‘According to the recording in the SAPS’ possession accused number 5 [Bongani] is being told to stop, after which a shot goes off,’ read the charge sheet. If it were not for this recording, the ‘true facts would never have come to light’, the state maintained.
Nokwanda said that while she was on the line with the 10111
operator, she had frantically screamed and called out for her brother to come and help her. She had also smacked Ngombane on his back a couple of times to try to revive him. These were the sounds that could be heard on the recording and which the state claimed were gunshots.
‘A Xhosa translator translated the recording of me and claimed that I had told Bongani to stop, which was not the case,’ said Nokwanda.
The NPA’s decision to use the recording as its main piece of evidence would prove to be a huge mistake. Not only was it insufficient to get a conviction, but it also drew attention to the fact that the police’s probe had the markings of a cover-up.
In March 2006, the state again asked the court for a postponement after having allegedly obtained ‘sensitive’ information that it said it needed to follow up on. ‘The information is of an essential nature that justifies further investigation,’ state prosecutor Andre du Toit told the court. 21 A source with insight into the state’s case told me that Du Toit was probably referring to a letter received from a prisoner who claimed to have shot Ngombane.
According to later media reports, Bhekisa Andreas Sibisi, who was
serving a twenty-seven-year sentence for murder and robbery at Ncome Prison near Vryheid, ‘confessed’ that Nokwanda had offered him R120
000 to kill her husband. He claimed that while being held at Barberton Prison in Mpumalanga, he was ‘secretly released on March 21 2005
under the pretext that he was admitted to hospital’. He was then driven through the night to Bloemfontein, where he was introduced to Nokwanda and her sister. He claimed to have shot Ngombane ‘after Nokwanda opened the door and gave the go-ahead’. 22
Sibisi’s claim could only be described as wild and outlandish. For starters, Ngombane was shot outside, as clearly indicated by the yellow chalk marks made by the police where they found the bullet casings in the driveway. 23 The NPA eventually agreed, indicating that an investigation had found Sibisi’s claim contained ‘no substance’. 24 In September 2007, the NPA formally withdrew all charges against the five accused.
It was an embarrassing U-turn. After a cocksure stance that had been echoed by Selebi, the NPA now said its prima facie case against the accused was too weak to pursue. ‘After consultation with the witnesses and further investigation we came to the conclusion that there was no reasonable chance of a successful prosecution,’ Du Toit told the press.25
An NPA insider told me that the police’s investigation had been weak from the outset, but that there was massive pressure to prosecute somebody. ‘Everybody wanted the NPA to prosecute,’ he recalled.
When Du Toit announced that the case against Nokwanda and her co-accused would be withdrawn, he added that the police would continue their investigation and that a judicial inquiry would be held into the matter. 26 The inquiry kicked off in the Bloemfontein Magistrate’s Court
in late April 2008 and was presided over by Magistrate Dawn Soomaroo.
The most shocking revelation to surface at the inquiry related to the police’s handling of the recordings of the phone calls made on the night of the murder. ‘An overseas sound expert, who initially testified that a recording of the 10111 call had some distinct sound which could possibly be gunshots in the background, later conceded the opposite after listening to another recording made at the same time,’ reported the Mail & Guardian in its coverage of the inquiry. 27
The first recording was of Nokwanda’s 10111 call from the cordless phone. The second was of her brother Bongani’s cellphone call to the police. This second recording was much clearer, and it was apparent that the sounds in the background were not gunshots, but the investigating officers for some reason failed to give it to the expert from abroad. In other words, the police had withheld crucial evidence from one of the state’s key witnesses.
The inquiry also heard from Advocate Willem Edeling, who had represented Nokwanda during the criminal trial. He alleged that the police had tortured Bongani in order to extract a confession.28
Nokwanda told me about the curious nature of their arrest and Bongani’s alleged torture. ‘We were arrested by SAPS members from Queenstown [in the Eastern Cape] and not by the police in Bloemfontein,’ she said. According to Nokwanda, before they were charged, the police ‘smuggled’ Bongani out of the Free State and took him to East London, where he was tortured.
Bongani had detailed his alleged abduction and torture in an affidavit made in 2005. He claimed under oath that the Eastern Cape police had stripped him naked, poured water over him and given him electric
shocks. 29 At the time, the police had strongly denied the allegations.
The testimony before the inquiry about the police’s conduct, especially with regards to the audio recordings, was compelling enough to raise the spectre of a far-reaching political conspiracy. But that was not the most sensitive testimony made before Soomaroo.
During cross-examination by the state advocate, Nokwanda was asked to elaborate on who she thought her late husband’s political enemies had been. She was hesitant to respond, saying that she ‘knew the politics’ in the province and feared for her and her children’s safety.
Soomaroo decided that Nokwanda should provide such information in camera. 30
Then, about midway through the inquiry, Edeling applied to have a second witness testify behind closed doors. This was Marshoff, and her testimony included the story she told me about the NIA agent.
The Soomaroo inquiry wrapped up towards the end of May 2008. It effectively slammed the eagerness with which the police and the NPA had arrested and prosecuted Nokwanda and her relatives. ‘Nokwanda, Bongani, Tantaswa, Vuyokazi and Siphumle were not directly or indirectly involved in the murder of Noby,’ Soomaroo concluded.
Although the inquiry did not come close to identifying those responsible for the murder, Soomaroo found that the evidence given in camera pointed to a ‘further route’ that required exploration.31
Perhaps unsurprisingly, there is no evidence to suggest that the NPA or any law-enforcement agency heeded Soomaroo’s instruction. In fact, all indications are that forces in the law-enforcement and justice environments acted to further cover up the matter after the inquiry.
In early 2018, Nokwanda set out to retrieve the inquiry’s records from the Bloemfontein Magistrate’s Court. She had long entertained the
possibility of suing the state for wrongful prosecution, and she wanted the records for this purpose. But her efforts would be fruitless. She showed me emails from Department
of Justice officials claiming that the inquiry file had ‘disappeared’.
I went to the Magistrate’s Court in September 2018 to try to retrieve the documents, but had no better luck. A court official in the records department told me that plenty of people had come looking for the file before me, and that it was indeed missing.
When I asked how it was possible that the court could lose such important documents, the official simply shrugged. Then he told me something even more concerning. Officials from the Hawks had come to the court in early 2018 to draw the file. When they too were told that it had gone missing, one of the Hawks told the court official that the police case file had also disappeared.
The matter was originally registered at Bloemfontein’s Bayswater Police Station under case number 116-03-05. When the Hawks went to retrieve the file from the Bayswater station, they found that it contained documents from a completely unrelated case. Someone had clearly replaced Ngombane’s case records with those of another matter.
I managed to corroborate what the court official was told with sources in the Hawks: the records from the 2008 inquiry are gone; so too is the case file opened by the SAPS after the murder in early 2005.
This does not mean that those behind Ngombane’s untimely death will never be apprehended. The mysterious NIA agent is still out there. It is also possible that the hitman or his getaway driver, or both, are still alive and well. A proper police investigation, unhampered by any meddling, may yet uncover the truth about a murder that has the markings of a top-level political hit.
PART III
THE R1-BILLION HOUSING
SPLURGE
8
‘Bring your people’
When Ace Magashule became Free State premier in 2009, he almost immediately began meddling in the affairs of the provincial departments with the largest budgets. One of those was the Free State Department of Human Settlements (FSHS), which is primarily tasked with providing low-cost housing to the province’s poorest citizens. 1 The FSHS became the site of such rampant looting by the Magashule capture network that it deservedly takes up a comparatively large portion of this book.
Let’s start with the province’s R1-billion Reconstruction and Development Programme (RDP) scandal from around 2010. This sordid saga is underpinned by a toxic combination of mismanagement and corruption, and Magashule’s fingerprints are all over it.
Earlier media reports exposed the involvement of a few politically connected individuals. But Magashule’s cronies escaped scrutiny and his own role in engineering this financial disaster remained under wraps, thanks to the department’s well-orchestrated management of the scandal’s fallout, which included selective legal proceedings that deliberately shielded Magashule’s friends and associates from exposure and financial liability. Most alarmingly, it appears Magashule may have directly participated in a wide-ranging cover-up to suppress the true facts by roping in a private forensic firm owned by a former government spy boss to ‘investigate’ the saga. This firm allegedly took hold of key documents and evidence, and subsequently prevented the Special Investigating Unit (SIU), which had also been tasked with
probing the issue, from accessing these important materials. As a result, the public was kept in the dark about Magashule and his cronies’ apparent involvement in one of the largest low-cost housing scandals this country has ever seen.
For the first time, this book exposes how scores of politically connected people benefited from a R1-billion spending frenzy that left in its wake hundreds of unfinished or poorly constructed RDP houses.
Some of Magashule’s closest associates pocketed money without completing their projects. And that is just the tip of the iceberg.
While studying the 2010 contracts, I stumbled upon records that detail the full, shocking extent of the capture and rot at the provincial Department of Human Settlements during Magashule’s reign as premier. In a period of nearly a decade, the FSHS channelled contracts for new houses worth more than R2 billion to a band of businesspeople linked to or associated with Magashule. There is also evidence to suggest that he punished former political allies who had abandoned his camp by stopping the flow of RDP contracts to companies owned by or linked to them. In effect, a picture emerges that Magashule determined the direction of the department’s money flows by acting as its de facto boss.
From a taxpayer’s perspective, the Free State’s low-cost housing programmes under the Magashule administration should elicit great anger. Many of the preferred contractors failed to deliver houses.
Others constructed houses replete with shoddy workmanship and substandard materials. In the worst instances, houses collapsed or were of such poor quality that they needed to be demolished and rebuilt by other contractors.
Among this coterie of cronies were politicians who once sided with
Magashule in the ANC’s factional battles, former business partners, colleagues in the provincial government and local legislature, and friends from his hometown. Even his daughter later tapped into the scheme.
This wholesale capture of the province’s housing budget was achieved by staffing the FSHS with people who could be trusted to act on Magashule’s orders. Current and former department insiders attested to a government environment in which the premier loomed in the background to ensure that his friends and associates got the most lucrative housing contracts. ‘Ace has spoken,’ one former department staffer was told by his superior when he queried a 2012 contract awarded to a known Magashule ally without a tender process.
The premier’s meddling, detailed in subsequent chapters of this book, appears to have forced department officials to override or ignore the rules and laws that govern how the state should spend its money. This reckless disregard for prescribed procurement standards is reflected in reports by the auditor-general, which show that the department incurred irregular expenditure totalling a jaw-dropping R7 billion in the nine years that Magashule ruled over the Free State. 2
To put this into context, in 2013/14 the Gauteng Department of Human Settlements spent R4.2 billion, of which R461 million, or roughly 10 per cent, was found to be irregular. 3 In the same year, the much smaller FSHS spent about R1.5 billion, but managed to rack up irregular expenditure of R857 million, or 57 per cent of total spend. 4
And 2013/14 was a relatively good year. In some financial years, as much as 80 (2015/16) and even 90 per cent (2011/12) of the department’s expenditure was classified as irregular by the auditor-general. 5 The main culprits appeared to be contracts for housing
projects that were awarded without following proper procurement processes. Year after year, the AG highlighted this troubling phenomenon, but the department made no effort to rectify the situation, as evidenced by its consistently ludicrous irregular-expenditure figures.
Irregular expenditure on dodgy contracts could possibly be forgiven if the department had fulfilled its mandate of delivering decent housing.
But that was simply not the case. While Magashule’s associates, friends and family stuffed their pockets, the province completely missed its housing targets. Today, thousands of incomplete or poorly built RDP houses are strewn all over the Free State. It is a horrific legacy for a politician who has branded himself as a champion of the poor.
So how did it all begin? Shortly after being sworn in as Free State premier on 6 May 2009, Magashule announced with great fanfare that his administration would build ‘bigger and better’ houses. These houses would be 50 square metres in size, he promised, an improvement on the 40 square metres previously specified for RDP
houses. 6 The man who would help him roll out this new strategy was Mosebenzi Zwane, the freshly appointed MEC for human settlements. 7
While at the time it seemed that Magashule was driven by noble intentions, the benefit of hindsight has led several sources, including current and former department insiders, to view the development in a different light.
When Magashule announced his plan to build bigger houses, the department had already fin
alised its planning for the following financial year. It had appointed about ninety contractors, who would altogether build roughly 16 000 houses, a former senior staffer told me.
However, these builders had been appointed in accordance with the old
40-square-metre specifications. The sources I spoke to claim Magashule insisted that the department find new contractors to build the bigger houses, sidelining many of the original contractors.
‘The first batch of contractors had already done their bill of quantities based on the old 40-square-metre specifications, and they had signed contracts with the department,’ explained the former FSHS official.
With Magashule’s new mandate, the department simply failed to honour these contracts. Some of the contractors felt aggrieved enough to take the province to court, but the premier soldiered on. ‘Ace told us that people should take him to court if they wanted to; he was going to appoint new contractors,’ said my source.
This former official now believes Magashule’s call for bigger houses was a ploy to get rid of the original contractors so that a new batch of politically connected businesspeople could benefit from RDP projects.
An analysis of the list of new contractors certainly supports this view.
A member of Magashule’s erstwhile executive council recalls an even more troubling event. ‘Ace called a lot of us together and told us there was going to be this huge series of housing contracts, so we needed to bring “our people” into the mix,’ claimed this politician.
According to court papers, 8 in early 2010 the FSHS initiated a fresh tender process based on the new specifications. When the tender closed in April, the department had received bids from 361 contractors.
However, amid all the uncertainty over the new specifications, the department was unable to award any contracts before the tender’s validity period lapsed. At the end of July, the department’s bid adjudication committee met to discuss the contracts.