Corruption-accused Limpopo ANC politicians Danny Msiza and Kabelo Matsepe have raised legal and procedural questions before the Supreme Court of Appeal concerning the independence of the criminal investigation into VBS Mutual Bank following the inclusion of law firm Werksmans Attorneys.
According to court documents, the South African Reserve Bank (SARB) and the Directorate for Priority Crime Investigation (DPCI), commonly known as the Hawks, commissioned the law firm to conduct a forensic investigation.
Yet, this is the same Werksmans, whose Sandton, Joburg, offices the Hawks dramatically raided on the very day they were roped in, February 15, 2019, further muddying the nature of the relationship between the law enforcement forces and the private law firm.
The Randburg Magistrate’s Court granted a search-and-seizure warrant on February 14, 2019, and the following day, acting component head of the Hawks’ Serious Corruption
Investigations Brigadier Zama Basi led a team of 11 officers to Werksmans’ offices to confiscate “all records and communications relating to VBS Mutual Bank for the period 1 January 2008 to 30 September 2018”.
Furthermore, on February 8, Basi commissioned supporting affidavits from a list of 10
witnesses to bolster the testimony of Werksmans’ director, Bernard Hotz – suggesting that Basi applied for a raid to confiscate evidence that he was involved in compiling. The affidavits do not include a police stamp or Basi’s force number.
Curiously, Hotz signed his affidavit on February 11, four days later than the affidavits purporting to support his version under oath.
Werksmans’ appointment, as well as the subsequent investigative actions, form the crux of Msiza and Matsepe’s application before the appeals court or a full bench of the high court.
The duo has demanded full records on “the process followed by the DPCI to appoint Werksmans Attorneys and their subcontractors to conduct a forensic investigation relating to the VBS Mutual Bank.”
The subcontractors are professional services firms Crowe – which previously did the actual forensic accounting work on behalf of Werksmans – FACTS and Basileus Consilium Professional Services.
Msiza and Matsepe said the demand was in response to a request for approval for the forensic services from Basi, dated February 15, 2019.
Sunday World has seen that letter, approved on the same day, in which Basi argued that Werksmans possessed the seized documentation and devices from various entities and individuals, and they had also identified potential witnesses.
He said: “The DPCI will not pay for the services, but the Prudential Authority of the South African Reserve Bank has undertaken to bear the costs, which is unconditional.”
On June 6, 2021, attorneys representing the requesting party invoked the Promotion of
Access to Information Act (PAIA) to obtain records related to this appointment.
The specific records requested include detailed procedural documents, correspondences, supply chain policies, approvals, financial records, and supporting letters from relevant authorities like the Prudential Authority and Treasury.
The objective was to examine the investigative process, the legality and legitimacy of the complaint, and the financial incentives that could influence the investigation. The requesting party’s emphasis on transparency and accountability underscores their concerns about the investigation’s integrity.
In response, the South African Police Service refused the PAIA request on January 21, 2022. The police cited Section 7 of PAIA, which precluded the law’s application to records required for ongoing criminal proceedings, as well as Section 87 of the Criminal Procedure Act.
The refusal led to a judicial application to compel the state to provide the requested
documents.
However, Judge Peter Mabuse denied this application on June 27, prompting an appeal on the grounds of judicial error and misdirection, filed on July 18.
Msiza and Matsepe asserted that Werksmans Attorneys’ investigation was complainant-driven.
They argued that they were entitled to know the circumstances and financial transactions involved in order to determine the investigation’s legitimacy and potential biases.
The appellants also critiqued the judicial process, asserting that the judge’s refusal to compel the state to disclose the information was a material error and misdirection.
