Police minister uses state-funded legal advisor in fight with own ministry.
Minister of Police Bheki Cele has sacked his private attorney and instead is using his state-funded legal advisor to help him fight his own ministry in a private civil matter in which – given his new position – he is also a respondent.
It is no doubt a conundrum for his new legal advisor Advocate Simo Chamane; more so because he denies providing advice to Cele-the-applicant despite court documents stating the contrary. Chamane should only be giving Cele-the-minister advice, as his mandate is to protect the ministry, not fight it. Chamane is faced with a clear conflict of interest – although he doesn’t see it.
Cele, who previously served as national commissioner of SAPS, was appointed Minister of Police in February this year by President Cyril Ramaphosa. Although he has been lauded for his stance towards crime, in 2012 he was certified by the Presidency-commissioned Moloi Commission of Inquiry as “dishonest” and “conflicted” and “not fit to hold office and… unable to execute his official duties efficiently".
The late Judge Jake Moloi’s findings resulted in Cele’s being fired by former president Jacob Zuma in June 2012. This came after two damning Public Protector reports against Cele titled “Against the Rules” and “Against the Rules Too” which concerned two lease agreements in Pretoria and Durban worth more than R1,7 billion that SAPS wanted to sign with businessman Roux Shabangu between March and July 2010.
The deal, said Moloi and the Protector, had signs of interference by Cele who had purposely guided the deals in Shabangu’s favour. Moloi called for an immediate investigation by “competent authorities,” saying the evidence “proved abundantly that there was a questionable relationship between the national commissioner and Shabangu on one hand and between Shabangu and Public Works officials who facilitated the lease agreements on the other” as well as between the national commissioner and some members of the SAPS.
That “competent authority” is the SAPS. A criminal investigation was opened by the DA shortly after the findings were made public but the charges have only gathered dust in the past six years. With Cele now back at the helm the investigation is unlikely to progress.
Cele’s move to use his legal advisor as his personal lawyer is directly related to the review application Cele launched in August 2012 in the North Gauteng High Court. His founding papers said he wanted all the Moloi Inquiry’s “findings, conclusions and recommendations… reviewed and set aside,” along with the former president’s reasons for sacking him.
The record stands at 546 pages including a replying affidavit from the Presidency defending the Moloi findings. Cele cited as respondents Moloi and his assistants Terry Motau SC and Anthea Platt SC, the National Police Commissioner, the Minister of Police and the President of South Africa.
But since then his fortunes have changed. Six years on and with no movement on his review application entirely by his own making, he is both the applicant and the fifth respondent (Minster of Police). He has authority over the fourth respondent (National Police Commissioner) and he was appointed to his position in early 2018 by the sixth respondent – the Presidency.
However a state advocate told Noseweek that until the Moloi findings are set aside, they stand.
Cele, his sacked law firm Strauss Daly, and Cele’s various spokespeople have refused to answer any questions put to them by Noseweek over a period of weeks as to the reason for the delay in the review application, whether they accept the Moloi findings and whether Cele is now abusing his office.
Ministry spokesperson Reneilwe Serero eventually sent Noseweek the following response from Cele: “Advocate Chamane is my legal advisor in my official capacity as the Minister of Police, and he is not involved in this matter, save to say the notice of withdrawal was sent by Strauss Daly and any questions relating to that I suggest that you contact them.”
“Regarding the status of my review application, the matter is still pending before the Court and I will respect those processes till they are concluded.”
Up until 6 July 2018 Cele was represented by Andile Khoza Strauss Daly in Umhlanga, Durban. The review application was launched by Cele in his private capacity.
In mid-July after several unsuccessful attempts by Noseweek to get comment from Khoza, Dinesha Deeplal a director at the law firm, replied unexpectedly: “Herewith our Notice of Withdrawal as Attorney of Record, which we are in the process of serving and filing. In the circumstances you are to liaise directly [with Cele] and not through our offices.”
The notice of withdrawal said: “Kindly take further notice that, the Applicant, Bheki Hamilton Cele, appoints Advocate S Chamane, as his contact person.” Chamane was copied into Deeplal’s email. It said Cele would “accept service of all documents” at the address of Simo Chamane, his “special advisor” in the “police ministry”.
But Chamane tried to feign ignorance when contacted by Noseweek, stating he had no idea why Strauss Daly had elected him to receive correspondence for Cele.
“I only deal with the state matters and official matters. I don’t deal with personal matters with the minister,” said Chamane.
Not wanting to commit on whether he would be conflicted in providing advice to Cele-the-applicant he said he was not the “personal attorney for the minister”. “I don’t know why Strauss Daly wrote my name in the notice of withdraw,” said Chamane.
Asked if Cele-the-minister had ever mentioned the review application to him and asked for advice on how to defend it as a respondent, he said: “The discussions between me and the minister are private and I can’t disclose them to you. It would be unethical and unprofessional of me to do so.”
Andile Khoza would later confirm that the appointment of Chamane to receive service for Cele was “proper” and no doubt on the authority of Cele.
According to the Department of Water and Sanitation, Chamane, who sits on Mhlathuze Water Board’s finance and remuneration committees, “is a legal expert and holds senior positions in the public and freight sector”. He also worked for the KZN Department of Community Safety when Cele was MEC of the department, as well as having been President of University of Zululand Convocation. He has spent a large part of his career in the public service.
Alison Lee, the CEO of the Corporate Counsel Association of SA, a non-statutory body that has developed guidelines and rules for legal counsel in both the private and public sectors, says a legal advisor can provide private legal advice to their employer providing it is not in conflict with their contract and if there is no clear conflict of interest.
“Legal advisors can provide support and assistance providing there is no conflict,” said Lee, citing former president Zuma’s use of legal advisors paid by the state for his personal matters. However, as in the case of Zuma’s current legal woes, if the executive using the legal counsel loses a personal case, they could be liable for the costs, she said. From her understanding of Cele’s matter, as discussed with Noseweek, there could be grounds for a conflict-of-interest, as Chamane was contracted to the Minister of Police, a respondent in the matter, and not Cele-the-applicant.
The Moloi findings are technically the property of the Presidency. Questions sent to Ramaphosa’s office also went unanswered. These included whether any investigation, as called for by Moloi, took place; and whether Ramaphosa considered the report before appointing Cele to the ministry.
The DA’s shadow minister of police Dianne Kohler-Barnard told Noseweek she has religiously asked for an update of the criminal charges laid against Cele on the strength of the Moloi findings.
“The police haven’t even said they will not investigate. Now no policeman is going to risk his career and investigate the minister. Cele has enjoyed political protection on this matter. My questions to the ministry are simply ignored. All institutions meant to investigate Cele fall under Cele. The defunct Scorpions would have looked into it but that is why they no longer exist,” she said.
In Cele’s founding affidavit he accused the board of ignoring his successes in his “primary functions and duties of combat, prevent and prosecute crime”. He called the board “biased” and said Moloi was “intent on finding me wrong and guilty at all costs”. He denied knowing Shabangu prior to the lease agreement or interfering in the agreements which in the end were not finalised.
He said he was not an “evasive and vague witness”.
He said Moloi and his advocate Motau had received his submissions with “open disdain” while accepting submissions from the evidence leaders with “laughing and glee”. He said his witnesses were unfairly “criticised as being dishonest”. But his witnesses did lack moral authority. They were his since-demoted CEO Lt General Bonang Mgwenya who was hand-picked by Cele without advertising the post, contrary to policy; the now suspended KZN provincial commissioner Lt Gen Mmamonnye Ngobeni and legal advisor Lt Gen Julius Molefe whose appointment was also clouded in controversy.
Ngobeni is embroiled in her own lease-for-pals scandal about police accommodation during the 2010 World Cup, involving Durban businessman Thoshan Panday who reportedly paid nearly R20,000 for Ngobeni’s husband Brig Lucas Ngobeni’s birthday party in 2010 while Panday was being investigated by the provincial Hawks unit.
Cele said in his review application that he wanted the findings of dishonesty, conflict-of-interest and contraventions of various pieces of legislation reviewed as well as the president’s decision overturned.
In Zuma’s answering affidavit filed in September 2012 by legal advisor Bonisiwe Makhene on behalf of Zuma, it said Cele had failed to “demonstrate that the President’s decision was irrational or arbitrary” nor could he provide evidence to “substantiate his bald assertion that the President’s decision was actuated by ulterior motives”.
Zuma dismissed Cele’s claim that he didn’t know Shabangu prior to the lease agreement debacle: “Even if this court were itself to assess the evidence anew, I submit that it would, as the board did, find that on the probabilities, the applicant knew Shabangu before 5 July 2010”.
Zuma said the board had found “five” instances where Cele had been dishonest, among them his not disclosing his relationship with Shabangu. The affidavit said that in deciding whether to sack Cele, the president had to consider the severity of the misconduct and Cele’s role as police commissioner.
“For this reason the President took the view that a punitive sanction short of removal would not be appropriate.”
However it is clear there was never any desire to pursue Cele, neither by the Zuma or Ramaphosa administrations and that South Africa’s security and justice apparatus is still a political tool.
When Zuma fired him as the top cop, he gave Cele a glowing send-off and said: “I would in particular, like to extend my personal gratitude to General Cele for his unquestionable commitment to his work as National Commissioner. Leading from the front, he brought much needed passion, energy, expertise and focus that boosted the morale of the police.”
In 2014 Zuma appointed Cele deputy minister of Agriculture and Fisheries.
In 2017, Cele changed political camp – backing Ramaphosa and attacking Zuma in the run-up to the ANC’s December 2017 national elective conference. He was promptly rewarded with the ministerial post where he can manipulate the investigation into himself. The wolf is in charge of the hen house.
The “New Dawn” promised by Ramaphosa is, it appears, simply the continuation of the old kleptocracy of the ANC where political allegiance trumps principal and rule of law.
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