SA+No+1+story,+Barry+Sergeant,+Fear+and+Loathing,+Moneyweb



=The country’s No 1 story?=

Barry Sergeant, Fear and Loathing, Moneyweb, 31 January 2008**

//The Scorpions, due to be “disbanded” into the police, can never forget the Oliver Powell case, where an exception could have made the rule.//

It's said by some that the now-certain "disbandment" of the Scorpions, an elite State investigative agency, by dumping it without ceremony into the police force by the end of June, is the country's No 1 story, ranking above the Eskom cataclysm. The tangled perception is that the Scorpions (which fall under the justice ministry) have investigated, and continue to investigate, one too many people in the elite of the African National Congress.

The list of well-known so-called Scorpions targets includes the ANC's new president, Jacob Zuma, and Jackie Selebi, the national commissioner of police (who reports to the minister of safety and security). By dumping the Scorpions into the police force, the beer and whisky theory goes, the Scorpions are going to be cauterised and emasculated. The Scorpions, the investigative unit of the National Prosecuting Authority (NPA), a unit of department of justice, have many defenders. For its part, the Scorpions claim piles of successes, and a high conviction rate.

Whatever happens to the Scorpions, they will be anxious to erase, at least from their memories, the case involving Oliver Powell. The exception so often proves the rule, and the Powell case could be the exception. At the end of 1999, just as the Scorpions were wiping afterbirth from their faces, Powell, one of the country's leading liquidators, and a very good liquidator indeed, was "bust" by Penuell Maduna, the-then minister of justice. On December 9, 1999, Maduna stated that "possible prosecutions for alleged corruption at the Pretoria Master's Office were expected as early as next month". These prosecutions have never materialised, to this day, but a far more savage outcome has been achieved.

Powell's premises were raided; on October 24 1999, the Scorpions also searched the Centurion home, near Pretoria, of Barend Christiaan "Ben" Nell, a Master of the High Court in Pretoria. Nell oversaw the department that awards individual liquidations to individual liquidators. In November 1999, Nell and two of his deputies, Charles Stewart and Eugene Januarie, were suspended with immediate effect. The scurvy idea - yet to be proven to this day - is that Powell was in cahoots with the top men in the Masters Office in return for appointments to lucrative liquidations.

The raids quickly ruined Powell's business, along with his personal life. Maduna continued careering along like a giant thresher machine running at full throttle on ether. On the night of January 28, 2003, he picked up the telephone and effectively fired Mike Tshishonga, MD of the Pretoria-based Masters Business Unit, on the spot, and with immediate effect. On October 10, 2003, Tshishonga went public, alleging in affidavits that Maduna had "undermined the rule of law by acting outside the scope of his powers".

Tshishonga detailed allegations of Maduna's "exploitation and abuse of State apparatus and the infrastructure and staff of the department of justice and constitutional development . . . for the purposes of advancing his personal interests and agendas". The dramatic complaints related mainly to Maduna's alleged "nepotistic" relationship with Enver Motala, an interesting character who had moved from the platteland to Johannesburg upon Powell's virtual destruction. Motala, with no prior training or experience as a liquidator, quickly moved into the position of No 1 liquidator in the country.

At the centre of the row: none other than Vusi Pikoli, until January 31, 2005, director general of justice, which houses the Masters Office. Pikoli then moved across to the seat of national director of the NPA, until his suspension by president Thabo Mbeki in November last year, possibly in connection with the planned arrest of Selebi by the Scorpions.

The Maduna-Motala relationship never looked good. Maduna had zero power to appoint liquidators, but Motala quickly rose, like some other things, to the top. Motala's chief button man was Leon Lategan, a scaly character in discount suits who lurked around in the Pretoria Masters Office. Far from following the traditional regimen of strict rotation, Lategan appointed Motala willy-nilly to the biggest and most lucrative liquidations, not least that of the Retail Apparel Group (RAG).

In one of the many court cases spawned by RAG, Judge Alan Magid, in the Durban High Court, noted evidence presented by Jeremy Gauntlett, senior counsel: "Uniquely, [Maduna] - who has no statutory responsibilities in relation to the [RAG] enquiry - sought its appointment, and has driven it throughout. Uniquely, [Maduna] also sought the appointment of [Motala] - and only [Motala] - as a liquidator.

"He in fact ordered the Master of [Kwazulu-Natal] to appoint him. The appointment was set aside by [Judge] Booysen. Unusually, [Maduna] then proceeded to appoint [Lategan], an additional Master in Pretoria, as a Master in this province [KwaZulu Natal] for the purposes of this [RAG] liquidation, and this liquidation only. It is apparent from the record that [Motala] has acted as a go-between with [Maduna] and, even more surprisingly, also the Minister of Finance [Trevor Manuel] and even the President [Thabo Mbeki]. Mr. Motala confirms this in his own affidavit".

Within months of Tshishonga going public with his allegations, Maduna quit his cabinet post. Motala liked to describe himself as "the most powerful person in the country", and no doubt he was. He certainly looked that way. A few months later, on July 2, 2004, the Serious Economic Offences Unit, an elite division of the SAPS, raided Motala's business premises and house. This was on instruction from Selebi, who earlier this month took extended leave, pending a possible indictment against him related to the carnival Glenn Agliotti situation.

Motala, anyhow, was arrested on allegations of fraud and corruption, along with a list of his crony button men in key positions in the courts and justice ministry. Until his arrest, Motala had been painted in heroic terms; far from being investigated by the Scorpions (as in the case of Powell), Motala was on the contrary described in some fawning media reports as the ‘Scorpion's liquidator'.

Tshishonga won his disciplinary case, and his labour law case, but his career in the justice department had an impossible future, and he has long quit. In all cases involving Tshishonga, there was no trace of Maduna; Pikoli, a Marxist, did the deed, defending Maduna to the bitter end. In testimony, Pikoli confirmed that Tshishonga told him that the reason for his "removal" by Maduna was that Tshishonga "did not help" Maduna in the RAG matter. Lategan, the man who "helped," was given a gigantic promotion, amid the destruction of a bipartisan liquidations panel and the obliteration of a number of careers in the justice department, not least that of the talented Irene Mokgalabone. As for the SAPS case against Motala, that has long since disappeared.

Powell has been vindicated. In a judgment handed down by South Africa's highest court (for the meantime), the Supreme Court of Appeals (case 503/2002), on April 1, 2004, it was stated that "The manner in which [Gerda] Ferreira [a senior Scorpions official] couched her affidavits was clearly misleading. She misstated the facts and the law regarding the practice in the Master's office. She misstated the facts about Nell abusing his position by appointing Powell contrary to that practice.

"She misstated the facts about Powell being the regular beneficiary of such misconduct by Nell and she misstated the facts about the appointment of liquidators in the seven big liquidations". It was also stated by the SCA that ahead of applying for a search warrant, Ferreira had "not yet checked the facts relating to Powell's appointments. The correct facts could easily have been ascertained simply by referring to the files at the Master's office. The facts would have destroyed Ferreira's thesis". The SCA had "no doubt that the way in which these bald allegations were made in the affidavit influenced the two judicial officers in authorizing the warrant".

While Powell has always argued that it is "imperative" to have an investigative agency such as the Scorpions, he also argues that "it is equally imperative that proper safeguards are in place to ensure that the powers of mass destruction available to investigators are not abused". In Powell's prolonged battle for justice and equity, it has become increasingly apparent to him that "the abusers have powers of mass destruction but do not have the ability (and training) to objectively investigate matters and to consider evidence in a balanced and impartial manner.

"These investigators hastily form expedient opinions and conclusions, and make statements which later they cannot withdraw or from which it is difficult for them to resile. The lies and cover-ups continue in the ‘brotherhood'. The arrogance with which the investigators execute their powers has become more and more apparent".

In the world according to Powell, "the modus operandi of the Scorpions is cynical and callous. Their targets are convicted without a trial. It matters little to them whether they prosecute or not. Even if they do not prosecute the consequence of the modus operandi is perforce that the target is convicted - and destroyed. They are fully aware of this and capitalise on it".

Powell's big outstanding case involves him suing - in their present and/or previous capacities - Maduna, Jan Swanepoel (an early head of the Scorpions, and later of PricewaterhouseCoopers), Basil Nel (once of PricewaterhouseCoopers) and a former Sunday Times journalist, Amanda Vermeulen, for R60m, plus interest. There is a separate case of R6m against the Sunday Times. After spending more than R6m on legal costs, however, Powell has allowed these cases to run out of steam.

No worry; Powell has won other court cases far and wide. In May 2004, Bulelani Ngcuka, the-then national director of the NPA, threw in four towels in a Pretoria High Court case. Powell had sued Ngcuka, along with Leonard McCarthy, head of the Scorpions, and Swanepoel. Lawyers for Powell had set down the case for a gruelling 10 days. But the Scorpions offered no contest and the court made four orders in favour of Powell.

First, it set aside the inquiry into Powell, and ordered that all documents in the hands of the Scorpions be returned either to Powell, or to the third parties to whom other documents belonged. Fourth, the court granted an interdict prohibiting the Scorpions from communicating anything about Powell or the case to anyone. And finally, it awarded costs to Powell.

Maduna's strange talents have been difficult to ignore. These days, he can be found as a senior partner at Bowman Gilfillan, a law firm. His name is also found in some big "black economic empowerment" transactions. If the Powell case was the exception that made the rule at the Scorpions, then the Scorpions deserve to be dumped on the scrapheap. Maduna cut and followed a savage path that some others discovered. The price of that savage path is the demise of the Scorpions. It should not have turned out like this.


 * From: http://www.moneyweb.co.za/mw/view/mw/en/page84?oid=190100&sn=Detail**

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