A heavy silence settled over the Madlanga commission of inquiry on Wednesday as the legal foundations of the Investigating Directorate Against Corruption’s (Idac) probe into Lieutenant General Dumisani Khumalo appeared to unravel, culminating in commission chairperson Judge Mbuyiseli Madlanga delivering what amounted to a first-year law lecture to Idac head Advocate Andrea Johnson.
After hours of sustained questioning, Johnson accepted that she had effectively relied on the word of member of parliament, Fadiel Adams, rather than objective facts, when deciding that his Section 27 referral justified launching an investigation.
The commission heard that Adams had originally complained to suspended police minister Senzo Mchunu that criminal dockets he had opened at police stations in the Western Cape had allegedly been intercepted.
Johnson accepted that Idac later established the dockets had not disappeared at all but were in the custody of the South African Police Service (SAPS) Inspectorate.
Why did the investigation continue?
Evidence leader Advocate Mahlape Sello repeatedly asked why the investigation had not ended once that central complaint had been resolved.
Johnson replied that investigators still wanted to examine the contents of the dockets because Adams had alleged they contained evidence of more serious criminal conduct.
“It couldn’t stop there because we now need to see what is in these dockets,” she said.
She explained that Idac first needed to open an investigation before it could lawfully request access to the police dockets.
Sello, however, questioned whether Idac had ever investigated Adams’ original allegation that Western Cape Police Commissioner Lieutenant General Thembisile Patekile had intercepted the dockets.
“In all honesty I cannot tell you that there was a separate investigation about that interception,” Johnson conceded.
Instead, she said the investigation branched into other matters, including the controversial appointment of Brigadier Dineo Mokwele and allegations involving Crime Intelligence chief financial officer Major General Philani Lushaba.
The commission then turned to the legal threshold required before Idac may initiate an investigation.
Sello listed the allegations contained in Adams’ affidavit, including suspicions that Crime Intelligence was being systematically captured, procurement manipulated, secret funds laundered, senior appointments abused and intelligence money diverted.
“I’m trying to search at which point a Section 27 referral dies,” Sello remarked.
Johnson responded that Adams had told Idac he periodically received information and that an envelope containing Crime Intelligence procurement documents had once been slipped under his door.
“That is the genesis for the grounds upon which his suspicion is based,” she said.
Commissioner Advocate Sandile Khumalo immediately pointed out that Adams had never produced the alleged envelope.
“That’s like saying, ‘I have grounds but won’t tell you what they are,'” he observed.
No objective factual basis contained in affidavit
Pressed repeatedly to identify factual material supporting Adams’ suspicions, Johnson eventually accepted that the affidavit contained no objective factual basis beyond what Adams believed.
“Would you accept that there is no factual basis advanced in this affidavit in respect of all the suspicions as you have identified them?” Sello asked.
“That would be correct, except his say so or his conclusion,” Johnson replied.
She maintained that, at the time, she believed the affidavit satisfied the requirements of the National Prosecuting Authority Act because Adams claimed to possess knowledge of wrongdoing.
That answer prompted Madlanga to probe whether she had applied a subjective or objective legal test.
Johnson answered that she had treated it as a subjective test.
“No, no, no. You can’t obfuscate issues in the manner in which you are saying,” Madlanga responded.
“You said you concede the test to be subjective. Now you are saying something that suggests that somehow you also considered it to be objective. You cannot have it both ways, please Advocate Johnson.”
When Johnson again confirmed that she had applied a subjective test, Madlanga paused before delivering a pointed lesson in basic legal principle.
Law 101
“Law 101 says, ‘Subjective, you look to the person’s mind. Objective, you test it with how a reasonable person would view the situation.’ The two are totally different. You cannot want to compound them.”
He continued: “Even a law student doing first year would know that at a later stage during their first year of legal studies. In fact, across the board of legal studies. You go to the law of delict, even criminal law. You encounter the reasonable test across the board. So, how you could mix the subjective test and the objective test completely escapes me.”
Madlanga warned that Johnson’s concession raised broader concerns about how she had interpreted Section 27 referrals since becoming Idac’s head in 2022.
Johnson ultimately accepted the criticism.
“I accept it. That was my error. It was an honest error. The test isn’t subjective; it is objective. Here I brought a subjective mind to bear on the information the person gave us.”
It was a striking concession from the country’s top anti-corruption investigator, one that left the commission examining not only the legality of the Khumalo investigation but also the legal yardstick Idac had applied in deciding whether to investigate allegations of corruption at all.
ALSO READ: Johnson concedes IDAC had no mandate to probe Dumisani Khumalo
- The Madlanga commission exposed flaws in the Investigating Directorate Against Corruption's (Idac) probe into Lieutenant General Dumisani Khumalo, highlighting legal missteps in initiating the investigation.
- Idac head Advocate Andrea Johnson admitted to relying on MP Fadiel Adams' subjective claims without objective evidence, despite the original complaint about allegedly intercepted police dockets being disproven.
- Johnson conceded that no separate investigation occurred into the interception allegations, and the probe shifted focus to other controversies, including senior appointments and alleged financial misconduct.
- The commission criticized Johnson’s misunderstanding of the legal threshold, specifically her incorrect use of a subjective test instead of the legally required objective standard when assessing Section 27 referrals.
- Judge Madlanga gave a sharp legal rebuke, emphasizing the fundamental difference between subjective and objective tests, and Johnson acknowledged this was a serious error affecting Idac’s mandate and investigative procedures since 2022.
