Investigating Directorate Against Corruption (Idac) head Advocate Andrea Johnson on Wednesday conceded before the Madlanga Commission of Inquiry that the anti-corruption unit had no mandate to investigate Lieutenant General Dumisani Khumalo based on the information initially placed before it.
In a bruising exchange, Johnson also acknowledged that Idac was “not supposed to solicit” complaints from members of the public after commission chairperson Judge Mbuyiseli Madlanga and evidence leader Advocate Mahlape Sello scrutinised the origin of a Section 27 affidavit submitted by controversial member of parliament Fadiel Adams.
The affidavit ultimately became the statutory referral on which Idac relied to open its investigation into Khumalo and others.
Johnson testified that the process began with correspondence from the police minister on special leave, Senzo Mchunu’s office.
She said the letter could not trigger an investigation because it contained no supporting documents or attachments.
Sello then asked Johnson what she did after discovering the attachments were missing.
Johnson was unable to give a direct answer.
Instead, she said she must have acknowledged receipt of the correspondence, although she could not produce the alleged response despite searches by her office. She suggested technicians may still be able to retrieve the email.
The commission sought to establish whether Idac had initiated the investigation in accordance with the National Prosecuting Authority Act and whether there was documentary evidence showing the statutory requirements had been met.
How did Adams come to submit a Section 27 affidavit?
Attention then shifted to how Adams came to submit a Section 27 affidavit.
Johnson speculated that chief investigator Dylan Perumal had probably contacted the MP after receiving instructions, although she conceded she could not say so with certainty.
That prompted Sello to ask a pointed question.
“Effectively, Idac solicited a Section 27 affidavit from Mr Adams.”
Johnson remained silent for several seconds before replying.
“I don’t agree with ‘solicited’. We would have asked him. I’m going through a detail that’s not mine and not in my head.”
When Johnson suggested she was recounting information obtained from officials in her office, Madlanga immediately interrupted.
“It’s yours. It’s yours. It’s yours, Advocate Johnson. You are the one who gave an instruction to chief Perumal to contact Mr Adams. Mr Perumal would then have been the actor on your instruction. That’s where the question is. So, please do not deflect the question.”
Madlanga then put the issue squarely.
“You solicited the affidavit. Do you now agree?”
Johnson eventually conceded.
‘Not supposed to solicit’ complaints from members of the public
Sello followed up by asking whether it was appropriate for Idac to solicit complaints from members of the public.
“No. We are not supposed to solicit,” Johnson replied.
She nevertheless maintained she did not know whether Adams had already prepared the affidavit before Perumal contacted him.
Madlanga pointed to the dates.
He noted that Adams’ affidavit was only stamped on November 21, 2024, ten days after the minister’s correspondence dated November 11.
“There was no prepared affidavit. That’s something you must accept. Let’s forget about an affidavit that could have already been in existence between the time that you got the letter from the minister and the time that this affidavit was eventually submitted to Idac,” Madlanga said.
Commissioner Advocate Sandile Khumalo observed that the referral had in fact originated from Mchunu’s office before Idac sought the affidavit from Adams.
Sello then revealed the original letter Adams had written to Mchunu, complaining that criminal cases he had opened in Gauteng and the Western Cape had allegedly been “intercepted” and asking the minister to intervene to protect the integrity of the investigations.
She asked Johnson what, if anything, in those documents triggered Idac’s statutory mandate.
“What in this would trigger your mandate? What about the contents of those documents bring this within the mandate of Idac to justify your initiative to direct Mr Perumal to go obtain a Section 27 affidavit?” Sello asked.
Johnson acknowledged that if Adams’ letter was indeed the attachment referred to, it would not have brought the matter within Idac’s jurisdiction.
“It wouldn’t trigger.”
She then conceded an even broader point.
“I can honestly tell you that I can’t recall this document. So, it cannot have triggered Idac’s mandate.”
Minister’s covering letter
Madlanga was equally unconvinced by Johnson’s reliance on the minister’s covering letter.
When she argued that it referred to serious allegations involving senior SAPS officers, Madlanga dismissed the explanation.
“That says nothing. We don’t even know what those allegations are, whether serious or not. That basically says nothing,” he said.
He reminded Johnson that she had previously criticised vague allegations when explaining why she did not act against Major General Feroz Khan.
“You had the ability to say, ‘This is vague. It doesn’t say when. It doesn’t say by whom,’ and you went on and on to demonstrate it was vague. That same process by you ought to have applied here as well.”
Madlanga then questioned why, if there was no valid Section 27 referral, she had not simply written back informing the minister that Idac could not lawfully act.
“Without fear you will be able to exercise your functions as a prosecutor, and you happen to be a senior one at that. If you accept, as you have just done, that there is nothing in the minister’s letter, what stopped you from writing back to the ministry and saying, ‘We do not have a Section 27 referral, therefore we cannot do anything about this?’ Were you fearful of the minister?” he asked.
“Not at all,” Johnson responded.
When she again suggested she still needed to locate her missing correspondence to the minister, Madlanga rejected the explanation.
“Surely that letter could not have said, ‘Minister, we are not going to do anything about this because there is no Section 27 referral.’ That would have been at odds with you instructing Mr Perumal to follow up with Mr Adams.”
Johnson agreed.
Madlanga concluded by asking what, if not fear of the minister, had motivated her decision to instruct Perumal to obtain the affidavit that ultimately formed the legal basis for Idac’s investigation.
ALSO READ: MKP calls for immediate suspension of IDAC boss Andrea Johnson
- Idac head Andrea Johnson admitted before the Madlanga Commission that Idac lacked a mandate to investigate Lt Gen Dumisani Khumalo based on initial information and was not supposed to solicit complaints from the public.
- Johnson conceded that Idac effectively solicited a Section 27 affidavit from MP Fadiel Adams, which became the statutory referral justifying its investigation, despite rules against soliciting such complaints.
- The affidavit was created after Minister Senzo Mchunu’s letter, which lacked supporting documents and could not trigger an investigation on its own.
- Johnson acknowledged that neither the minister’s letter nor Adams’ initial complaint triggered a valid Idac mandate, and she could not recall key documents demonstrating legal grounds for the investigation.
- Commission chair Judge Madlanga questioned why Johnson did not inform the minister that Idac could not act without a proper referral, with Johnson unable to provide a clear reason beyond locating missing correspondence.
In a bruising exchange, Johnson also acknowledged that Idac was "not supposed to solicit" complaints from members of the public after commission chairperson Judge
Johnson testified that the process began with correspondence from the police minister on special leave, Senzo Mchunu's office.
Sello then asked Johnson what she did after discovering the attachments were missing.
Johnson was unable to give a direct answer.
Instead, she said she must have acknowledged receipt of the correspondence, although she could not produce the alleged response despite searches by her office.
Attention then shifted to how Adams came to submit a Section 27 affidavit.
Johnson speculated that chief investigator Dylan Perumal had probably contacted the MP after receiving instructions, although she conceded she could not say so with certainty.
"Effectively, Idac solicited a Section 27 affidavit from Mr Adams."
Johnson remained silent for several seconds before replying.
"I don't agree with 'solicited'. We would have asked him. I'm going through a detail that's not mine and not in my head."
When Johnson suggested she was recounting information obtained from officials in her office,
"It's yours. It's yours. It's yours, Advocate Johnson. You are the one who gave an instruction to chief Perumal to contact Mr Adams. Mr Perumal would then have been the actor on your instruction.
"You solicited the affidavit. Do you now agree?"
Johnson eventually conceded.
Sello followed up by asking whether it was appropriate for Idac to solicit complaints from members of the public.
"No. We are not supposed to solicit," Johnson replied.
He noted that Adams' affidavit was only stamped on
"
Commissioner Advocate
Sello then revealed the original letter Adams had written to Mchunu, complaining that criminal cases he had opened in
"What in this would trigger your mandate? What about the contents of those documents bring this within the mandate of Idac to justify your initiative to direct Mr Perumal to go obtain a Section 27 affidavit?" Sello asked.
Johnson acknowledged that if Adams' letter was indeed the attachment referred to, it would not have brought the matter within Idac's jurisdiction.
"It wouldn't trigger."
"I can honestly tell you that I can't recall this document. So, it cannot have triggered Idac's mandate."
When she argued that it referred to serious allegations involving senior SAPS officers,
"
He reminded Johnson that she had previously criticised vague allegations when explaining why she did not act against Major General Feroz
"You had the ability to say, '
"
"Not at all," Johnson responded.
When she again suggested she still needed to locate her missing correspondence to the minister,
"Surely that letter could not have said, 'Minister, we are not going to do anything about this because there is no Section 27 referral.'
Johnson agreed.
ALSO READ: MKP calls for immediate suspension of IDAC boss
