State backed into a corner for DCEC raid
Mpho Mokwape | Tuesday February 13, 2024 06:00
The Attorney General (AG) representing the DIS appeared before the CoA last Thursday, appealing a judgment that ruled in favour of former Director-General of DCEC. Tymon Katlholo had taken the DIS to court in protest over the raid, which occurred in early 2022. The AG's attorney, Thabiso Olatotse, faced a tough time answering the judges' perplexing questions. The court had previously granted Katlholo, on behalf of DCEC, an interdict against DIS, which had raided and sealed his office allegedly in pursuit of dockets related to some officials of the intelligence agency. At that time, the DCEC was reportedly investigating some DIS officials, including Director-General Peter Magosi, leading to the raid while Katlholo was out of the country on official duty. Now, the State questioned whether it was right for Katlholo, in his capacity, to litigate on behalf of the corruption busting organ, raising questions about why DIS thought it was acceptable to raid another organisation.
The bench of justices Isaac Lesetedi, Baaitse Nkabinde, and Edwin Cameron had several questions for Olatotse. Olatotse's attempt to clarify that Jet Mafuta was a police officer seconded to the DIS didn't convince Judge Nkabinde. The judge questioned why a police officer would be seconded to another organisation and under what law such a move was allowed. Judge Nkabinde expressed scepticism about DIS' entitlement to DCEC files, stating, 'Honestly, I do not believe that DIS was entitled to DCEC files. Why were they persistent in getting those files? What law empowered them to do that?' On the other hand, Justice Lesetedi questioned why two state-independent organs with different mandates could not communicate civilly. He enquired why the directors of both organs couldn't sit down and talk, especially if DIS was seeking information related to national security.
He asked why the DIS felt the need to raid and seal an independent organisation. Lesetedi raised concerns about DIS investigating national security matters and its interest in the investigations against former spy chief Isaac Kgosi and Seleka Springs. He questioned the involvement of Mafuta in these affairs, stating, 'What business does Mafuta have here? According to court documents, DIS did not seek information on the progress of those two investigations. Now, Mafuta is attempting to interview DCEC officers to force them to disclose classified information.' Lesetedi enquired from Olatotse about the persistent efforts of DIS to obtain records when DCEC had clearly stated that such information could not be shared. He emphasised that the law is explicit in prohibiting interference with the corruption organisation's mandate. Lesetedi pressed Olatotse on whether he agreed that DIS interfered with DCEC, to which the AG attorney reluctantly conceded.
Justice Cameron expressed confusion on why one organisation, recognised regionally and internationally, could be raided by another. He emphasised that DCEC was an independent organ protected by its mandate and the law, and no other organ had the right to interfere with its duties. Meanwhile, Katlholo's attorneys, Dutch Leburu and Phenyo Sekape, contended that the former director was compelled to file an application to safeguard both the DCEC and himself. They argued that Katlholo, being a public officer leading an independent organ, had the right to bring an application against the DIS in his capacity. The date of judgment has been reserved.