Investigating Directorate Against Corruption (Idac) head Advocate Andrea Johnson came under renewed pressure at the Madlanga commission of inquiry on Thursday after conceding that chief investigator Dylan Perumal began engaging a complainant in the crime intelligence investigation before Idac had lawfully authorised either a preliminary inquiry or a formal investigation.
The admission prompted commissioners to accuse the anti-corruption directorate of operating outside its own legal framework, with evidence leader Advocate Mahlape Sello SC suggesting officials appeared to be making up the rules as they went along.
Johnson returned to the witness stand after Wednesday’s proceedings ended early to accommodate the effects of medication she told the commission had left her feeling unwell.
The hearing resumed with commissioners seeking an explanation for why Idac’s Section 28 application listed 12 people for investigation when Member of Parliament, Fadiel Adams’ original Section 27 affidavit mentioned only three senior South African Police Service (SAPS) officers.
Investigator consulted Adams before investigation authorised
Johnson said she had since established that Perumal consulted Adams before the investigation had been authorised.
The consultation, she acknowledged, occurred before she had approved even a preliminary investigation.
“Before you authorised even a preliminary investigation, that suggests that Mr Perumal was already engaging with Mr Adams. Was he doing so within his mandate in circumstances where Idac itself had not even authorised a preliminary investigation, let alone an investigation in terms of Section 28? How could he do that?” Sello asked.
Johnson replied that Perumal would have to explain why he had acted “over and beyond” the contents of the Section 27 affidavit.
“There isn’t a process that I can refer to commissioners for why he would have engaged Mr Adams,” she conceded.
Pressed on whether the conduct was lawful, Johnson stopped short of defending it.
“It is conduct that we would have to escalate, as we do have the Idac judge for an independent consideration of the legality and/or not of his conduct,” she said.
“I have to get a response from him. If the response is outside the framework and the legality, it must then be dealt with through the Idac judge.”
No legal authority permitting Perumal’s conduct
Sello then asked Johnson whether she could identify any legal authority permitting Perumal’s conduct after she had already testified that no investigation had yet been authorised.
“There is no legality that I can point to the commissioners,” Johnson admitted.
The concession drew one of the commission’s sharpest criticisms yet.
“One gets a sense that everybody in Idac is on a frolic of their own and this is the start with this particular investigation,” Sello remarked.
“That seems to permeate through the organisation.”
Johnson rejected the suggestion that it reflected the culture within Idac, insisting any deviation from established procedures would be investigated and dealt with appropriately.
Prescribed procedures vs unwritten practices
Commissioner Advocate Sesi Baloyi questioned whether the directorate was relying on unwritten practices rather than prescribed procedures.
“If what you say happened is what happened, then you are telling us there is no prescribed process that he can be held to that says to him, ‘Until there is a decision that we are taking this matter on, you may not engage with a complainant or any potential witness,'” Baloyi said.
“If you don’t have that kind of operating procedure prescribed, you could never blame him for rushing off to go and hold his conversation, including if he chooses to prompt witnesses.”
Johnson insisted that Idac did have operational processes.
“There are those process maps,” she replied.
Thursday’s exchanges came less than 24 hours after Johnson conceded that she had incorrectly applied a subjective legal test instead of the objective standard required by the National Prosecuting Authority Act when assessing Adams’ referral.
She also accepted that Idac was not supposed to solicit complaints from members of the public before ultimately acknowledging that the directorate had requested Adams to submit the Section 27 affidavit that later formed the legal basis for its investigation.
The commission is continuing to probe whether Johnson, as head of Idac, exercised proper oversight over investigators and whether the investigation into Crime Intelligence was initiated in accordance with the law.
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- The head of the Investigating Directorate Against Corruption (Idac), Advocate Andrea Johnson, admitted that chief investigator Dylan Perumal engaged a complainant before an investigation was legally authorized, raising concerns about procedural violations.
- Commissioners accused Idac of operating outside its legal framework, with evidence leader Advocate Mahlape Sello SC suggesting officials were "making up the rules" during the Crime Intelligence investigation.
- Johnson acknowledged that Perumal consulted Member of Parliament Fadiel Adams prior to formal approval of any preliminary or formal investigation but could not justify the legality of this action.
- Johnson conceded there was no legal authority for Perumal’s early engagement with the complainant and indicated the need for an independent review of his conduct by the Idac judge.
- The commission continues to scrutinize whether Johnson exercised proper oversight and if the Crime Intelligence probe was initiated lawfully, amid concerns about Idac's adherence to prescribed investigative procedures.
Johnson returned to the witness stand after Wednesday's proceedings ended early to accommodate the effects of medication she told the commission had left her feeling unwell.
Johnson said she had since established that Perumal consulted Adams before the investigation had been authorised.
"Before you authorised even a preliminary investigation, that suggests that Mr Perumal was already engaging with Mr Adams. Was he doing so within his mandate in circumstances where Idac itself had not even authorised a preliminary investigation, let alone an investigation in terms of Section 28? How could he do that?" Sello asked.
Johnson replied that Perumal would have to explain why he had acted "over and beyond" the contents of the Section 27 affidavit.
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Pressed on whether the conduct was lawful, Johnson stopped short of defending it.
"It is conduct that we would have to escalate, as we do have the Idac judge for an independent consideration of the legality and/or not of his conduct," she said.
"I have to get a response from him. If the response is outside the framework and the legality, it must then be dealt with through the Idac judge."
Sello then asked Johnson whether she could identify any legal authority permitting Perumal's conduct after she had already testified that no investigation had yet been authorised.
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"One gets a sense that everybody in Idac is on a frolic of their own and this is the start with this particular investigation," Sello remarked.
"
Johnson rejected the suggestion that it reflected the culture within Idac, insisting any deviation from established procedures would be investigated and dealt with appropriately.
Commissioner Advocate Sesi Baloyi questioned whether the directorate was relying on unwritten practices rather than prescribed procedures.
"If what you say happened is what happened, then you are telling us there is no prescribed process that he can be held to that says to him, 'Until there is a decision that we are taking this matter on, you may not engage with a complainant or any potential witness,'" Baloyi said.
"If you don't have that kind of operating procedure prescribed, you could never blame him for rushing off to go and hold his conversation, including if he chooses to prompt witnesses."
Johnson insisted that Idac did have operational processes.
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