DETERMINATION OF THE FINDING: REF HQ Cl DR 91/2022: EXPEDITIOUS PROCESS: NO. 0636936-7 MAJOR GENERAL MA MAKHELE 1. Proceedings before the finding {tis important to inform andlor remind the employer as well as the employee that this matter was involving three (3) employees (Major General Nemutanzhela, Major General Makhele and Lt Colonel Mahwayi) until 2023-08-26 when the designated functionary chose to separate the matter because of challenges that were faced, this report still covers other employees whose determination of finding has already been communicated to them. It will only be confined to the employee (Major General Makhele) after the matter was separated, which is the 25% of August 2023. The matter was conducted in terms of the Expeditious Process as provided for in Reg 9 of the SAPS Discipline Regulations, 2016. A designated functionary was appointed in writing on 2023-02-02 and the acknowledgement thereof was submitted on 2023-02-03. The designated functionary collected the file (bundle) from the employer on 2023-02-20. The same bundle was also given to all three (3) charged employees as per subject The employees were notified of the allegations of misconduct levelled against them by means of a notice marked as Annexure Q in terms of Reg. 9(2) (b) of the SAPS Discipline Regulations, 2016 and were subsequently instructed to appear before the designated functionary in order to afford them an opportunity to answer to the allegations as stated in the Annexure Q Notice. 2. The first sitting on 2023-03-22 The first sitting was arranged in Gauteng Province on 2023-03-22, all charged employees were absent only their representatives came with medical certificates from medical practitioners. Some of employees’ medical certificates were reoccurring (Major General Makhele), Major General Nemutanzhela’s medical certificate was a month long. Lt Colonel Mahwayi's medical certificate was dated the same day of the sitting, his representative indicated that he caught cold on the same day of the sitting. The sitting proceeded, with the designated functionary explaining and putting emphasis on that in a disciplinary sitting the ordinary sick note is nothing other than a piece of evidence. In its form it cannot be used as means to exonerate the employee from appearing before the functionary. Itwas further explained to the representatives that on the next sitting should the employees be sick, a medical certificate must be accompanied with an affidavit from the medical practitioner indicating that the employee cannot attend the disciplinary sitting, probably he/she cannot sit, hear or talk. The representatives heard but had a different view. They Page | 1DETERMINATION OF THE FINDING: REF HQ Cl DR 91/2022: EXPEDITIOUS PROCESS: NO. 0636936-7 MAJOR GENERAL MA MAKHELE indicated that medical practitioners are experts on their fields so an ordinary medical certificate was enough. The designated functionary re-emphasised that on the next sitting should the employees be sick, medical certificates must be accompanied by affidavits from medical practitioners. The meeting was adjourned with the next sitting date to be communicated in due course. 3. The second sitting on 2023-03-13 The second sitting was arranged in Gauteng Province on 2023-04-13. All charged employees were again absent only their representatives came with medical certificates from medical practitioners. The employee (Major General Nemutanzhela’s) medical certificate was extended to cover the whole month (60 days uninterrupted). The employee (Mejor General Makhele) was still reoccurring. A leave form (SAPS 26) was presented for the employee (Lt Colonel Mahwayi). The designated functionary was informed that he was on leave. The designated functionary asked for the affidavits as discussed and requested on the first sitting (2023-03-22) there was no affidavit from any of the medical practitioners as it was requested. The designated functionary emphasised that the employees had again failed to appear before him for no reason (as there were no requested affidavits). The meeting was adjourned, On 2023-04-17 the designated functionary invoked Regulation 9(7) (B) and requested the employer to serve the employees. Subsequently the employees swiftly emerged from where they were. 4. The sitting after Reg. 9(7) (b) was invoked (employee Major General Makhele) The employee (Major General Makhele) communicated with the designated functionary and the sitting was arranged for 2023-04-24 in KZN. She came with her lawyer and two POPCRU representatives, the Lawyer and the employees’ representatives came to the board room without the charged employee. The meeting started, on preliminary issues the designated functionary asked if the charged employee was around. He was informed that she was around but could not come inside the board room, she was sitting in the car. The designated functionary requested that she be brought to the boardroom. When she came, she could not walk but was supported by two gentlemen and a lady (her son and Major General Makubo, Fezile Dabi District Commissioner) the employee could not sit on the chair (as it was stated she was sitting inside the car) but was rolling on the floor back and forth Page |2DETERMINATION OF THE FINDING: REF HQ Cl DR 91/2022; EXPEDITIOUS PROCESS: NO. 0636936-7 MAJOR GENERAL MA MAKHELE crying, the lady who was accompanying her ended up crying too. She did not have shoes on but was walking in socks, she could not answer even a simple question like “what has happened General?" It became intense, nothing in relation to the purpose of the meeting could proceed. The meeting was adjourned. On 2023-05-09 the designated functionary requested the employer to conduct a medical evaluation on the employee (Maj General Makhele) based on what was observed on 2023-04-24. 5. Sitting after Reg. 9(7) (b) was invoked (employees Major General Nemutanzhela and Lt Col Mahwayi) ‘On 2023-05-05 the designated functionary received correspondence from a POPCRU representative who introduced herself as somebody acting on behalf of the charged employees (Major General Nemutanzhela and Lt Colonel Mahway/). This was a different POPCRU representative from the one who was involved on this matter. She indicated that they are requesting the expeditious process to reconvene. Subsequent to that the charged employee (Maj General Nemutanzhela) sent direct correspondence to the designated functionary on 2023-05-07 (Sunday) he had his own opinion about the proceedings, but among others he wanted the expeditious process to reconvene. The designated functionary reconvened the expeditious process in KZN on 2023-05-22 as it was done with the other charged employee (Major General Makhele). The charged employees indicated that the SAPS disciplinary regulations 2016 states that the proceedings must be in the work place of the employees, the response from the designated functionary was that indeed Reg 4() of the SAPS disciplinary regulations 2016 states “as far as possible the disciplinary proceedings must take place in the workplace and it must be understandable to the employee” it does not specify whose work place, and as a result none of the previous sittings sat in the workplace of the employee (Crime Intelligence) after that response the employees stated that they do not have resources to travel since they are ‘on suspension without pay, they requested that the proceedings be in Pretoria. The designated functionary reconsidered and arranged for the sitting in Pretoria. The designated functionary received correspondence from a different Union representative and a different Union, he indicated that he is from SAPU and he is from now on representing the charged employees (Major General Nemutanzhela and Lt Colonel Mahwayi) further communication on this matter must be directed to him. He was prescriptive on where the proceedings should be held, Proceedings were arranged on 2023-06-12 in Pretoria, it was. Page| 3DETERMINATION OF THE FINDING: REF HQ Cl DR 91/2022: EXPEDITIOUS PROCESS: NO. 0636936-7 MAJOR GENERAL MA MAKHELE for the upliftment of the suspension as per SAPS disciplinary regulation 9(7) (B) of 2016. Alter deliberations the delegated functionary uplifted the suspension only from 2023-06-12 because the sitting could not proceed without the third charged employee (Major General Makhele). The next sitting was arranged for 2023-07-26 6. The sitting of 2023-07-26 The sitting on 2023-07-26 was the first time that all three charged employees were present with their union representatives (SAPU representing two charged employees and POPCRU representing one charged employee. On the preliminary issues SAPU brought an issue that the bundle which was given to the employees in February/March 2023 had classified documents and he was informed by the employees that he could not go through the bundle because he did not have security Clearance. These classified documents are so important that the employer is relying entirely on them for this matter. They asked that it be declassified so that he could have access to it ‘The POPCRU representative brought an issue that the charged employee was at the venue physically but not mentally, her medical practitioner had prescribed medication that made her sleep and lose concentration otherwise she was not supposed to be in attendance. The representative mentioned that he was excused from this matter but the employee would be represented by an advocate from POPCRU. After deliberation the sitting was adjourned and the designated functionary indicated that he would ask the employer for declassified copies The designated functionary requested the proceedings to continue after the declassified Copies were received by the employees. SAPU objected and indicated that the siting was only arranged for one day the 26" July 2023, he had other commitments, The designated functionary decided to separate the sittings, two employees represented by SAPU are from Pretoria and they would sit separately from the one employee represented by POPCRU and she is from Bloemfontein, among other reasons was that it was very difficult to get all the three employees attending the sitting because of different reasons. ‘On 2023-08-11 the letter signed by the previous National Commissioner approving the declassification of documents together with the notices to appear on 2023-08-21 were sent to the SAPU representative, He responded among others by stating that he was advised by the employees that he must refrain from engaging on classified documents. The Page |4DETERMINATION OF THE FINDING: REF HQ Cl DR 91/2022: EXPEDITIOUS PROCESS: NO. 0636936-7 MAJOR GENERAL MA MAKHELE “declassification” word must be physically on the document, (the letter signed by the National Commissioner was insufficient since the document they had did not have such “declassification’. The employer responded to SAPU by sending him the required documents, he further stated that should the “declassification” word be pale on the copies, SAPU is at liberty to come and collect from the employer's office. On 2023-08-17 SAPU indicated that the “declassification’ was clear on the documents he further stated that it was the first time they received the declassified documents from the employer and he was not able to interrogate the documents, but was in content with the documents. 7. The sitting of 2023-08-25 ‘On 2023-08-24 a sitting was conducted, the employee Major General, Makhele was present and her Union representative POPCRU. After opening, the designated functionary allowed preliminary issues if they were existing. The employee (POPCRU) indicated among others that in any work place when somebody is sick and has notified the employer and the employer acknowledged, it means the employer says you are not fit to work, the employee has been booked off sick but the irony is that the employer expected her to be on duty because when you are attending disciplinary hearings you are on duty. POPCRU indicated that there cannot be any reason to separate the parties charged together for the same misconduct unless one party has pleaded guilty and the other party has pleaded not guilty, that is the only premise for separation, any other reason makes the proceeding unfair. The Union Representative indicated that the undue delay in these disciplinary proceedings was blurring the impact of corrective discipline, when an employer does not comply with the aspects of its own disciplinary procedures the employer's conduct amounts to the waiver of its right to discipline. After all the preliminary issues the designated functionary indicated that the matter needed to proceed to substantive issues as he was of the view that issues raised on preliminary matters could not stop the sitting from its continuation. On the substantive issues POPCRU indicated that the deviation to procure the product had to be made because it was above R500 000-00 and people who were supposed to procure gave the proposal for a deviation, the document filed as A122 is the document justifying the deviation. The designated functionary posed clarity seeking questions directly to the employee Major General Makhele, when asking when did she start acting as Divisional Page|DETERMINATION OF THE FINDING: REF HQ Cl DR 91/2022: EXPEDITIOUS PROCESS: NO. 0636936-7 MAJOR GENERAL MA MAKHELE Commissioner Crime Intelligence, she responded and said in 2016 but could not give the exact date. The next question was, was she aware of other Suppliers that were invited by Crime Intelligence to do presentation on the same product that was to be procured somewhere in August 2016. Her response was that she never had that information but she would be briefed by the CFO, Major General Nemutanzhela about the procurement of IT solution for intelligence collection because she had been frequenting the Police portfolio committee in relation to the fees must fall protest. According to POPCRU the only thing that dragged the employee, Major General Makhele on this matter is her signature recommending the approval for deviation which they do not think had a significant influence on the approval or disapproval of the deviation 8. The alleged misconduct All three employees in this matter faced allegations of contravening Regulation 5 (4) (f) and Regulation 5 (4) (k) of the SAPS Disciplinary Regulations 2016, it is alleged that the employees committed corruption and fraud whereby they undermined the policy of the Service, wilfully and negligently mismanaged the finances of the State by performing an act with the intention of causing harm or prejudicing the interest of the Service financially, as a result a case docket was opened and registered as per Brookiyn CAS 565/11/2017 Corruption and Fraud for further investigation which led to the employees’ arrest and detention at Brooklyn SAPS. 9. Evidence in support of the Allegation These allegations are contained in two statements from Mr AW Sehas and Brigadier TL Hlungwani outlined in details. In his statement Mr AW Sehas stated the following among others: > He was the investigating officer in the case of Fraud, corruption, theft and contravention of the Public Finance Management Act registered in Brooklyn CAS 565/11/2017relating to the fraudulent and irregular procurement of two platforms namely RIPJAR, a social media monitoring platform and DAEDALUS, a mobile communication encryption platform by the Secret Service Account of Division: Crime Intelligence. It is alleged that procurement regulations were blatantly disregarded and ignored, proper procurement processes were not followed. > During December 2016 the Division: Crime Intelligence of SAPS embarked on a process to procure software or IT solution for intelligence collection and / or social Page |6DETERMINATION OF THE FINDING: REF HQ Cl DR 91/2022: EXPEDITIOUS PROCESS: NO. 0636936-7 MAJOR GENERAL MA MAKHELE v v media monitoring. This software or IT solution was referred to as RIPJAR. On about the 23% of August 2016 Management of the Division: Crime Intelligence invited Thales South African (Pty) Ltd and the Council for Scientific and Industrial Research (CSIR) to provide quotations and do presentation on software or IT solutions for intelligence collection. The CSIR quoted an amount of R7 000 000-00 for the development of an industry-specific IT solution or software which would have met the detailed specifications. In the affidavit obtained from the Team Leader of Cyber team of CSIR he explained that should Division: Crime Intelligence have taken their system, it would have costed the State around R500 000-00 to have it installed on Cl premises and maintained by CSIR which is also a State department. Godfrey Mahwayi, Obert Nemutanzhela and Mankosana Agnes Makhele (who are referred to as employees in this report) were aware of this procurement process, but they started a parallel procurement process where Godfrey Mahwayi submitted a request for procurement and Obert Nemutanzhela and Mankosana Makhele co- authored an application to deviate from prescribed procurement procedures alleging that there was an emergency that necessitated the deviation from prescribed Procurement procedures. The application was recommended by Makhele and approved by Phahlane. Obert Nemutanzhela was aware of the written price quotations and presentations (by Thales SA (Pty) Lid and CSIR) at the time when he compiled an application for deviation from the procurement procedures prescribed by Section 217 of the Constitution and other relevant legislations. Makhele was a co- author of the application for deviation and she recommended the application. No cogent reasons for deviation from the prescripts of the law relating to procurement of goods or services were provided in the application. At the time of submission of the application there was no reason to state that the procurement was ‘urgent’. It is common knowledge that the fees must fall protest started in October 2015 and according to the affidavit from Peter Fryer also a service provider, who had done pro bono work for Ci at the start of the protest with his system and Cl was in content with the capabilities. His system would have costed the CI around R8 000 000-00 View Integrated System and a Company named Perfect Source Professional Service (Pty) Ltd (Perfect source) submitted written price quotations to supply software for social media monitoring and/ or intelligence collection to the Division: Page |7DETERMINATION OF THE FINDING: REF HQ Cl DR 91/2022: EXPEDITIOUS PROCESS: NO. 0636936-7 MAJOR GENERAL MA MAKHELE Crime Intelligence. The two entities were registered in the Central Supply Database (CSD) of National Treasury. The CSD serves as a single source of key suppliers information for organs of State as of the 1*' of April 2016. > The supplier's information was required to be verified with institutions such as the South African Revenue Service (SARS), Companies and Intellectual Property Commission (CIPC), Department of Home Affairs etc. The wording, format and pricings of the two entities were similar in several material respects even though there were no specifications for the software that the SAPS sought to procure. ‘Treasury Regulation 16 A6.2 (b) requires organs of state to compile specifications in respect of the goods or works or services to be procured. > The sole shareholder and director of Perfect Source was Gevani Naidoo who was married to Avendra Naidoo. |-View Integrated Systems was associated with Perfect Source and/ or its owner and/or husband of the owner of Perfect Source. Cover quoting, sometimes referred to as "shadow quoting” or “bid rigging’ refers to the act of tendering an artificially high price for contract, on the assumption that the tender will not be accepted. It is a form of anti-competitive practise. > The written price quotation of |-View Integrated Systems was compiled and dated before the date on which Godfrey Mahwayi compiled and submitted a proposal for Nemutanzhela to approve. The written price quotation of Perfect Source was dated 20 December 2016. Godfrey Mahwayi compiled the proposal a day before Perfect Source submitted its written price quotation. Gevan Naido neither signed nor compiled the written price quotation submitted by Perfect Source. Avendra Naidoo who was a friend of Inbanathan Kistiah and by extension related to I-View Integrated ‘Systems compiled and signed the written price quotation submitted on behalt of Perfect Source. > Fictitious competition was created by submission of two written price quotations from entities that were related to each other. Perfect Source through the instrumentality of ‘Avendra Naidoo purported to quote a R45 715 191-20 to supply RIPJAR to Division: Crime Intelligence. |-View Integrated Systems quoted R33 858 000-00 to supply the said software and/or IT solution to Division: Crime Intelligence. The relationship between Inbanathan Kistiah and Avendra Naidoo was such that there could be no competition between Perfect Source and I-View Integrated Systems. Page |8