Lincoln v Minister of Justice and Constitutional Development and Another (17967/2012) [2017] ZAWCHC 108 (22 September 2017)

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[2017] ZAWCHC 108
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Lincoln v Minister of Justice and Constitutional Development and Another (17967/2012) [2017] ZAWCHC 108 (22 September 2017)

IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case
No: 17967/2012
In
the matter between:
ANDRÉ EDWARD
LINCOLN
Plaintiff
v
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
1
st
Defendant
MINISTER OF SAFETY AND
SECURITY
2
nd
Defendant
Court
:
Justice J Cloete
Heard
:
13, 14, 16, 20, 22, 23 and 28 March 2017, 20, 24, 25 and 26 April
2017, 2, 3,
8,
9, 10, 11, 15, 16, 17, 18 and 22 May 2017, 26 and 27 June 2017.
Delivered
:
22 September 2017
JUDGMENT
CLOETE
J
:
Introduction
[1]
The plaintiff, currently a major-general in the South African Police
Service (SAPS) seeks damages from the Minister of Safe
y and Security
(the second defendant) for an alleged malicious prosecution
instigated against him by various SAPS members. The
plaintiff
previously also sought damages from the Minister of Justice and
Constitutional Development (the first defendant) but
withdrew that
claim on 22 September 2016.
[2]
The merits and quantum were separated by an earlier order and the
trial thus proceeded only on the merits. The plaintiff testified
and
called one witness. The second defendant led the evidence of six
witnesses.
Background
[3]
The plaintiff was formerly the deputy head of the African National
Congress Department of Intelligence and Security (DIS) in
the Western
Cape. He was responsible for gathering intelligence on a range of
issues but, in particular, infiltrating the operations
and structures
of the former SAPS security branch in the Western Cape.
[4]
Following the end of apartheid, during 1994/1995, former President
Nelson Mandela appointed Commissioner George Fivaz to oversee
the
integration, amalgamation and rationalisation of the entire police
and security structures in this country.
[5]
This included the integration of members of the DIS into the National
Intelligence Agency (NIA), save for about 120 members
who were
integrated into SAPS. The plaintiff was responsible on a national
level to facilitate that process for members of Umkhonto
we Sizwe
(MK). Once this was completed, and in about April 1995, the plaintiff
was deployed to the National Intelligence Coordinating
Committee
(NICOC).
[6]
According to the plaintiff, NICOC’s functions were essentially
to facilitate the intelligence process within South Africa
among the
different intelligence agencies, which consisted of civilian as well
as police and military intelligence; to identify
security threats,
manage and neutralise them; and to oversee all covert operations
within these structures.
[7]
The plaintiff fulfilled two roles in NICOC. First, he was the SAPS
representative on its subcommittee of the National Intelligence

Estimate, which collated and identified the intelligence needs of
government departments. Second, he was the Chairperson of the

Directorate of Covert Collection and he managed and oversaw covert
intelligence operations between the military, secret service
and SAPS
crime intelligence.
[8]
Given the legacy of apartheid the integration process, as would be
expected, was not plain sailing. In the plaintiff’s
words: ‘
on
both sides there was mistrust, and in certain instances hostility…we
came from opposing backgrounds and we just didn’t
trust each
other when it came to the way forward within the new service…’
.
[1]
[9]
In 1995 an Inspector David Le Roux approached the plaintiff with a
report containing highly classified and alarming information

concerning the activities of Mr Vito Palazzolo (Palazzolo) who was
alleged to be the sixth highest ranking member of the Italian
Mafia,
the Cosa Nostra, and who was based in Cape Town. It was alleged in
that report that Palazzolo had on his payroll the then
head of the
SAPS Organised Crime Unit, Commissioner Neels Venter, as well as Mr
Pallo Jordan who was a cabinet minister at the
time.
[10]
Given his mistrust of the SAPS “old guard” the plaintiff
did not approach Fivaz with this information but rather
the Head of
NICOC, Mr Dennis Nkosi. After discussing the report the plaintiff and
Nkosi approached the then Minister of Safety
and Security, Mr Sidney
Mufamadi, and this ultimately resulted in them having a meeting with
Mandela.
[11]
Thereafter, on about 11 June 1996, Mandela met with Fivaz and
instructed him to establish a special unit to investigate the
matter.
This was confirmed in a handwritten letter from Mandela to Fivaz of
that date, which read as follows:
[2]
‘
Attention:
General Fivaz.
11th June 1996.
The following people
are members of a special investigation task unit. It is requested
that they be relieved of all other duties
and responsibilities with
immediate effect:
Director Andre
Lincoln,
Captain D. Van der
Westhuizen,
Inspector John
Nicholson,
Inspector David Le
Roux
Inspector Phillip
Wright
Inspector Steve
Burnett
Sergeant Bruce Smith
Marjorie Nicholson.
It is further
requested that Director Andre Lincoln be relocated to Cape Town so
that he takes overall responsibility for the unit
as well as the
management of the entire operation.
Monthly running
costs         R28 000.00
Technical Resources
2 motor vehicles
3 Pentium Computers
and Printers.
3 notebook computers
1 fax machine
1 shredder
1 Photocopy Machine
2 Cellular phones &
sim cards.
6 Pearlcorders.
N
Mandela (signature)
President.’
[12]
Mandela decided that due to the seriousness of the allegations in the
report, the unit would operate outside of normal SAPS
structures.
According to the plaintiff the unit would report only to Mandela (and
subsequently, Deputy President Thabo Mbeki) and/or
Mufamadi instead
of following the usual reporting lines within the SAPS hierarchy. The
unit was called the Presidential Investigation
Task Unit (PITU) and
the project it undertook Operation Intrigue. PITU began operating out
of the Western Cape in about June 1996
with the plaintiff as its
commander.
[13]
The plaintiff described the mandate of the unit as follows:
‘…
to
investigate the allegations contained in the report, with special
reference to the activities of Mr Vito Palazzolo, his links
to the
criminal underworld and his links to that of members of the South
African Police Service. It was also meant to investigate
the
allegations contained about the possible corrupt relationship between
Mr Palazzolo and Mr Jordan as well as between Mr Palazzolo
and
Commissioner Neels Venter.’
[3]
[14]
On 18 June 1996 a letter written by the plaintiff and signed by
General Wouter Grové (the Divisional Commissioner and
Head of
the National Crime Intelligence Service) was addressed to Venter,
Assistant Commissioner Smit (the Provincial Head, National
Crime
Intelligence Service, Western Cape), Director Claasen (the Provincial
Commander, Organised Crime) and Senior Superintendent
Van Rooyen (the
Provincial Commander, Commercial Crime). This letter informed its
recipients that the individuals referred to in
Mandela’s
handwritten letter of 11 June 1996 were to be relieved of all duties
and responsibilities so as to take up their
positions in PITU and
further that:
‘
2.   Due
to the extreme sensitivity of this investigation it has been decided
by both the President
and the National Commissioner
that
this unit will report directly to the President
and
Commissioner Fivaz
.
3. It is estimated
that this investigation will run for approximately one year.
4. Even though this
unit reports directly to the President
and
the National
Commissioner
it
still remains a part of the South African Police Service and
therefore you are requested to give it your full support and
assistance
where needed…’
[4]
[emphasis supplied]
[15]
Captain Dorothea Van der Westhuizen was appointed as PITU’s
financial officer to deal with the financial and logistical

requirements of the unit. Given that Operation Intrigue was a covert
operation, it would ordinarily have been funded from the SAPS

‘
secret’
account. However, because Venter served
on the Secret Services Account committee it was decided that
Operation Intrigue would be
funded from the ‘
open’
SAPS account. The arrangement was that PITU’s claims
(informers’ fees, subsistence and travel, rental, etc) would be

dealt with separately by the SAPS Provincial Office. The latter’s
officials were tasked with ensuring that claims received
from Van der
Westhuizen had been properly certified; however they were not
entitled to query such claims, were obliged to treat
them
preferentially and pay them without delay, and thereafter forward
them to head office in Pretoria for auditing.
[16]
During its investigation, PITU uncovered criminal activities of a
police officer attached to the Commercial Crimes Unit, Simon

Nothnagel, who was involved in counterfeiting, racketeering and
fraudulent transactions with US counterfeit dollars.
[17]
In collaboration with the American Secret Service, PITU also
uncovered the so-called Operation Donna in which counterfeit US

dollars were being printed in the basement of the SAPS head office in
Pretoria together with counterfeit matric certificates, university

degrees and drivers licences.
[18]
According to the plaintiff, PITU also took over the dormant
investigation into an attempted assassination plot of President

Mandela and in the process retrieved a handcrafted rifle. In
collaboration with Interpol PITU investigated the international
fugitives
Jurgen Harksen and Uwe Bold, ultimately securing their
successful extradition to Germany.
[19]
The above investigations were taken over by PITU from various units
of SAPS, such as the Commercial Branch, Cape Town, the
Organised
Crime Unit, the Intelligence Unit in Pretoria and the Detective
Branch of the Cape Town Police Station.
[20]
The plaintiff’s evidence was that the reaction of SAPS officers
to PITU’s activities was resistance and obstruction.
On 15
October 1996 he addressed a letter to Mbeki, Mufamadi, Fivaz and
Divisional Commissioner Craemer (the SAPS National Head
of Finance),
complaining of interference and sabotage of the investigations of the
unit by SAPS members.
[5]
The
plaintiff complained that senior members of the Intelligence
Coordination Unit in the Western Cape were attempting to spy on
PITU
and uncover the content of the investigation; that a senior member of
the Technical Support Unit, Pretoria, had interfered
in the purchase
of furniture for the unit’s safe house; and that there had been
‘
various
attempts by members of
[SAPS],
in
particular Detective Services, Western Cape to badmouth members of
this Unit and myself’
,
but that ‘
the
above-mentioned problems have been dealt with, without creating too
much of a scene’.
The
rest of the letter complained about a Superintendent Venter insisting
that the plaintiff return his cell phone to NICOC as it
was
registered as NICOC’s property. The plaintiff’s sim card
had been suspended and he threatened to take the matter
up with
Mandela if it was not immediately reinstated.
[21]
According to the plaintiff, his letter resulted in a meeting between
himself, Mbeki and Mufamadi at which his complaints were
discussed
and that ‘
I
know that General Fivaz was given instructions to deal with the
allegations contained in my letter’.
[6]
[22]
On 15 July 1997 (9 months later) the plaintiff again wrote to Mbeki
and Mufamadi
[7]
complaining that
the investigation into Palazzolo’s activities had been severely
hampered ‘
by
an orchestrated campaign by a member of this unit
[one
Smith]
,
the office of the Attorney-General of the Western Cape and the
Anti-Mafia Division of the Italian State Police’.
He
advised that an internal investigation was underway into Smith who,
he suspected, had been recruited by the Italian Police. No
details
were given about the involvement of the Attorney-General’s
Office, but the claim was made that Smith, together with
members of
the Organised Crime Unit in Bellville, had attempted to falsely
implicate Palazzolo in petty crimes. He requested an
urgent meeting.
[23]
On 15 August 1997 Fivaz summonsed the plaintiff to a meeting at his
office in Pretoria. Instead the plaintiff, accompanied
by another
unit member, Inspector Piet Viljoen, approached Mbeki. He in turn
arranged a meeting for later that day which was attended
by Mbeki,
the plaintiff, Fivaz, Mufamadi and Viljoen. During that meeting the
plaintiff again complained to Mbeki that the unit’s
members
were being targeted and there was severe interference which was
hampering their investigations. Fivaz in turn reported
that he had
received complaints about serious irregularities in the affairs of
PITU, potentially of a criminal nature, that required
investigation.
It was agreed by all present at the meeting that Director Leonard
Knipe (the head of the Serious and Violent Crimes
Unit in the Western
Cape) was the appropriate person to lead the investigation into the
alleged PITU irregularities.
[24]
Thereafter a meeting took place on 20 August 1997 between members of
PITU, Fivaz and his two chief deputies, Deputy National
Commissioner
Lavisa and Assistant Commissioner Williams. On 29 August 1997 Fivaz
addressed a letter to the plaintiff which was
copied to Mbeki,
Mufamadi, Lavisa and Williams. This was the first time that the
unit’s mandate, and the parameters in which
it could operate,
were clearly spelt out and it read as follows:
‘
ACTIVITIES AND
RESPONSIBILITIES: PRESIDENTIAL INVESTIGATION TASK UNIT (PITU) –
CAPE TOWN
1.
I refer to the
meeting between members of the PITU and myself, Deputy National
Commissioner Lavisa and Assistant Commissioner Williams
on
1997-08-20. During the meeting we were briefed about the operations
of the PITU, progress made by the unit since its establishment
±
12 months ago, obstacles in the way of the unit etc. Furthermore, the
mandate of the unit and the official line of command
of the unit were
thoroughly discussed. This letter serves as formal confirmation of
the issues discussed and decisions taken and
must be seen as a
directive for the activities of the unit.
2.
MANDATE
2.1
The unit is hereby
mandated to continue with the investigation into possible illegal
activities of Vito Roberto Palazzolo and any
other person(s) or group
of persons directly involved with or related to Palazzolo activities.
All existing files, dockets or other
documentation in the South
African Police Service relating to the subject must be handed over to
the PITU and an inventory of all
the relevant items must be submitted
to me for record purposes.
2.2
The unit is
furthermore mandated to continue with the so-called “Nothnagel
investigation” and also with the investigation
of information
indicating the possible involvement and/or corruption of other police
officers in that regard. This investigation
is presently being
conducted by D/Insp P Viljoen, but because senior officers are
allegedly involved the investigation and any
other investigation
emanating from it should be done under the direct command of Deputy
National Commissioner Lavisa. The latter
will ensure the
participation of the AG Pretoria and other role-players in this
regard.
3.
GENERAL
DIRECTIVES
3.1
The PITU shall not receive further briefs unless it is approved by
the National Commissioner or Deputy National Commissioner Lavisa.
3.2
The reporting line of the Unit is to the coordinating committee
which was set up for that purpose, namely: The National Commissioner,

Deputy National Commissioner Lavisa and Asst Comm Williams.
3.3
No extraordinary expenditure (e.g. rental of buildings, motorcars
etc) shall be incurred by the PITU unless it is approved by the

National Commissioner or Deputy National Commissioner Lavisa.
3.4
Duplication of effort and cost should be avoided. Investigations
must be coordinated and the existing capacity of the Service and

sister departments (e.g. counter intelligence, surveillance,
technical services etc.) should be utilised where appropriate.
3.5
Verbal and written progress reports must be submitted to the above
committee once every month.
3.6
Obstacles, needs and problem areas must, immediately when they
arise, be reported to one of the coordinating committee members.
3.7
The PITU is not allowed to act outside the framework of the rules
and regulations applicable to the South African Police Service.
The
unit operates with the approval of the President and all efforts must
thus be made not to create any form of embarrassment
for the
President, his office or the South African Police Service in general
– this must be the motto of the unit.
3.8
The offices, dockets, financial statements and general
administration of the unit shall only be inspected under the direct
instructions
of the National Commissioner.
4.
OTHER
ARRANGEMENTS
4.1
Additional members and other resources for the unit will be
provided by the Coordinating Committee on the basis of the workload
of the Unit.
4.2
An urgent meeting
between the Coordinating Committee, and NIA will be held to discuss
the secondment of personnel to the unit, specifically
for utilization
as agents and the gathering of intelligence.
5.
The commander and
members of the PITU must please acknowledge receipt of this
directive.’
[25]
On 3 October 1997 the Mail & Guardian published an article,
claiming
inter
alia
that
PITU was a political unit working outside of the SAPS framework and
that serious charges were being investigated against it
on the
instructions of Fivaz. The report also included reference to various
covert operations being conducted by the unit. Incensed,
the
plaintiff wrote to Fivaz on 5 October 1997,
[8]
stating
inter
alia
that:
‘
4.
[The
report]
clearly indicates that certain members of the South
African Police Service with very devious intentions have passed on
information
to the press with the intention of discrediting this Unit
and its members. This newspaper report and the continuous radio
reports
over the weekend have blown a considerable part of our
investigation as well as putting the lives of the Unit members, our
agents
and sources in danger.
5. One of this Unit’s
best sources was attacked on 1997-10-04 at a nightclub and while he
was beaten up it was clearly told
to him by his attackers that they
now know what he and DIRECTOR LINCOLN are busy with…
8. It is very clear
that certain elements in the SAPS are becoming scared of the results
of our investigations and that they are
now trying to go all out to
shut down this Unit… It would now seem that not only myself
but every one of my Unit members
are under investigation…
12. We now ask you
COMMISSIONER what is the future of this Unit now that the
investigation has been blown in the press and furthermore
that one of
our sources has been attacked as a result of the newspaper report.
13. According to the
[Mail & Guardian article and a subsequent article on 4
October 1997 which appeared in the Cape Argus]
this office is
under investigation without any written notification as stipulated by
your letter…dated 1997-08-29, paragraph
3.8 and signed by
yourself.
14. With reference to
the abovementioned letter (paragraph 3.7) it is clear from press
reports that this office has in no way caused
any embarrassment to
the PRESIDENT and the DEPUTY PRESIDENT but that elements within the
SAPS
acting under your instructions
have caused
embarrassment…’
[emphasis supplied]
[26]
Fivaz responded to the letter by instructing that departmental steps
be taken against the plaintiff, stating the following
in a
handwritten note:
‘
I am of the
opinion that
[the]
letter
is indicative of a total lack of respect and contains a number of
false accusations. The style of the letter is furthermore
arrogant
and I intend to direct that Departmental steps be taken against
[the
plaintiff]
.’
[9]
[27]
On 11 November 1997 the plaintiff wrote to Fivaz complaining about
difficulties experienced in relation to PITU’s expenditure.
[10]
These pertained to the refusal to pay increased rental for the unit’s
premises as a result of a rates increase (where the
Provincial Office
was of the view that agreed rental should not be affected thereby)
and the refusal of the Provincial Office to
make payment of
subsistence and travel expenses without head office approval although
the plaintiff himself had approved them.
These complaints were
coupled with a request that this expenditure, along with various
operating costs of the unit, be approved.
The plaintiff complained
that the approach of the Provincial Office ‘…
clearly
leaves one with the conclusion that Director Lincoln has no authority
whatsoever and is of questionable character…with
respect, it
has become clear that Director Lincoln is treated differently…’
.
[28]
In a letter dated 25 November 1997 Assistant Commissioner P J Bosman,
the SAPS Assistant Head of Finance, replied (the letter
was copied to
Fivaz and to Western Cape Provincial Commissioner Wessels).
[11]
He granted permission for payment of the increased rental, and
further stated that:
‘
2.2.1 It has
been confirmed that all claims for travel and subsistence approved by
Director Lincoln have been paid in the past and
will be paid in
future and thus no aspersions are cast upon the authority or
character of Director Lincoln.
2.2.2 It is however
important to note that in accordance with directives issued by the
Auditor-General, Director Lincoln’s
personal claims will have
to be authorised by an Assistant Commissioner or higher which is the
case at all centres where senior
officers are available to certify
claims of Directors…
3.1 The Presidential
Task Unit is obliged to comply with financial regulations and
directives and I know that I can rely on your
fullest co- operation
in this regard as Director Lincoln has full authority as
prescribed in the Delegations of Authority and will not be treated
any differently to any other officer in this respect.’
[29]
On 18 February 1998 the plaintiff was arrested on a number of
charges, including fraud and drunken driving. He ultimately stood

trial in the Wynberg regional court on 47 counts, comprised of 44
counts of fraud, one of theft, one of drunken driving and one
of
leaving the scene of an accident. The counts of fraud and theft all
pertained to alleged financial and related irregularities
by the
plaintiff within the unit, in particular his rental of two vehicles
without authority, claims that he made for subsistence
and travel
allowances; rental of two safe houses without the necessary
authority, payment of fees to three informers, and theft
of furniture
from a unit safe house. The remaining charges of drunken driving and
leaving the scene of an accident arose from a
collision in Higgovale
in which the plaintiff was involved early on the morning of Sunday 27
July 1997.
[30]
The marathon trial in the Wynberg regional court commenced on 22 May
2000. On 18 November 2002 the plaintiff was convicted
on 17 of the 47
counts and was sentenced on 24 January 2003 to a total of 9 years
imprisonment without the option of a fine, and
ordered to pay
compensation in terms of s 300 of the Criminal Procedure Act.
[12]
[31]
He subsequently appealed against both his conviction and sentence.
The appeal was heard by Traverso DJP and Le Grange J and
on 16
October 2009 the plaintiff’s appeal succeeded and the
convictions and sentences were set aside.
[32]
The salient portions of the appeal court’s judgment read as
follows:
[13]
‘
The counts of
which the appellant was convicted were the following:
(a) Counts 1 to 10,
which referred to the alleged unauthorised rental of a Mazda 626 and
an Audi…
(b) Counts 36 to 37
were charges of fraud in respect of the alleged fraudulent payment of
informers’ fees and operational
expenses in amounts of R2
000,00; R2 000,00 and R2 530,00 respectively.
(c) Count 39 was a
charge of fraud relating to a trip which the appellant undertook with
Mr Roberto Palazzolo to Angola. It is alleged
that he defrauded the
State out of an amount of R12 744,53 in respect of the costs of that
trip, in that Mr Palazzolo paid for
those expenses and accordingly
the appellant did not enjoy a claim in respect thereof.
(d) The next count on
which the appellant was convicted, was count 41, which referred to
accommodation expenses and the cost of
a flight ticket incurred in
respect of Alvira Williams, who the appellant flew down from East
London for an interview, because
he regarded her as a potential
agent. It was anticipated that he would place her in the offices of
Mr Palazzolo.
(e) Then count 46 is a
drunken driving charge and count 47 is a charge of leaving the scene
of the accident before the police arrived.
The record of this
case runs into some five and a half thousand pages. The entire trial
consisted of intrigue, name dropping and
very little else. Because
there are high ranking officers involved and because names such as
that of President Mandela, Mr Mbeki,
Commissioner Fivaz, Minister
Mufamadi and more, were bandied about, I had every intention of
giving a detailed judgment.
However, in view of
the concessions made by the State
in response to
[counsel
for the plaintiff’s]
very competent argument I do not
believe that it is necessary for me to do so. I will, therefore,
briefly deal with the respective
counts…’
[emphasis supplied]
[33]
The ‘
concessions made by the State’
obviously
referred to those of counsel for the first defendant, and not any
representative of the second defendant, who is now the
only defendant
before the court.
[34]
In his amended particulars of claim
[14]
the plaintiff alleged that during July 1997 Superintendent Bouwer,
Superintendent Senekal, Inspector Abraham Smith, Director Knipe
and
Superintendent Rossouw of SAPS wrongfully and maliciously set the law
in motion by instigating the 47 charges against him,
when they had no
reasonable or probable cause or any reasonable belief in the truth
thereof. In particular, it was alleged that
false statements against
the plaintiff were procured by one or more of these members in terms
of s 204 of the Criminal Procedure
Act from junior officers,
informers and other witnesses who did not wish to give statements
voluntarily. It is to be noted that
the plaintiff did not allege that
Fivaz
had any
role to play in the alleged malicious instigation. Nor did he
specifically allege that the SAPS members in question acted
in
concert to conspire against him.
[35]
The second defendant denies any wrongful or malicious acts by these
members. Bouwer and Senekal were superintendents in the
Evaluation
Services Unit at SAPS headquarters; Smith was a former member of
PITU; Knipe – as previously stated – was
appointed as the
lead investigator; and Rossouw was appointed by Knipe as his
co-investigator. All of these officers, save for
Bouwer, testified
during the trial.
[36]
Before turning to deal with the evidence on the disputed issues it is
convenient to summarise the applicable legal principles.
It should be
mentioned that I was also referred to several other authorities by
counsel for the plaintiff, including foreign authorities,
but I do
not consider them to be helpful given the settled legal principles
contained in the judgments of our highest courts.
Applicable legal
principles
[37]
In order to succeed in his claim, the plaintiff must prove that:
[15]
37.1 The second defendant
set the law in motion by instigating the prosecution against him;
37.2 The second defendant
acted with malice (or
animus injuriandi,
for which purpose
dolus eventualis
will suffice);
37.3 The second defendant
acted without reasonable and probable cause; an
37.4
The
prosecution against the plaintiff has failed.
[16]
[38]
It is common cause that the first and fourth requirements have been
met.
[17]
Accordingly, what
must be determined is whether the plaintiff has proven the second and
third requirements. The role of the first
defendant’s employees
in the investigation and prosecution is
not
under
scrutiny, given that the claim against the first defendant has been
withdrawn.
[39]
In
Rudolph
v Minister of Safety and Security
[18]
the requirement of malice was set out as follows:
‘
[18] The
requirement of “malice” has been the subject of
discussion in a number of cases in this court. The approach
now
adopted by this court is that, although the expression “malice”
is used, the claimant’s remedy in a claim
for malicious
prosecution lies under the
actio injuriarum
and that what has
to be proved in this regard is
animus injuriandi
. See
Moaki
v Reckitt and Colman (Africa) Ltd and Another
; and
Prinsloo
and Another v Newman.
By way of further elaboration in
Moleko
it was said:
“
The defendant
must thus not only have been aware of what he or she was doing in
instituting or initiating the prosecution, but must
at least have
foreseen the possibility that he or she was acting wrongfully, but
nevertheless continued to act, reckless as to
the consequences of his
or her conduct (
dolus
eventualis
).
Negligence
on the part of the defendant (or, I would say, even gross negligence)
will not suffice.” ’
[19]
[40]
In
Woji
v Minister of Police
[20]
it was held:
‘
[34] The
minister admitted that Inspector Kuhn had set the law in motion
against Mr Woji on a charge of armed robbery, but alleged
that he
acted lawfully and reasonably in doing so. The minister further
alleged that prosecutors employed by the National Prosecuting

Authority correctly decided to prosecute Mr Woji on a charge of armed
robbery.
With regard to the liability of the SAPS, the
question is whether
Inspector Kuhn did anything
more than one would expect from a
police officer
in the circumstances, namely to give a fair and honest
statement of the relevant facts to the prosecutor, leaving
it to the latter
to decide whether to prosecute
or not. See
Moleko
at paragraph 11.
Whether Inspector Kuhn did so, will be determined in conjunction
with an examination of whether Mr Woji proved the necessary element

of malice on Inspector Kuhn’s part.’
[emphasis supplied]
[41]
In
Minister
of Justice and Constitutional Development v Moleko
[21]
the court, in considering the role of the police in the context of a
claim for malicious prosecution, stated that:
‘
[16] Captain
Gwayi testified that he had nothing to do with the decision to
prosecute Mr Moleko – he merely conducted the
investigation and
collected evidence. As far as he was concerned, the decision to
prosecute was “the prerogative of the National
Prosecuting
Authority”.
[17] Based on these
facts, it is clear to me that Captain Gwayi at all times acted on the
instructions and under the direction of
the office of the DPP.
Neither he nor any other policeman employed by the third appellant
was responsible for the decision to prosecute
the plaintiff. For this
reason alone, I
am of the view that the appeal must therefore
succeed insofar as the third appellant is concerned.’
[42]
The court went on to explain “reasonable and probable
cause”:
[22]
‘
[20] Reasonable
and probable cause, in the context of a claim for malicious
prosecution, means an honest belief founded on reasonable
grounds
that the institution of proceedings is justified. The concept
therefore involves both a subjective and an objective element
---
“
Not only must
the defendant have subjectively had an honest belief in the guilt of
the plaintiff, but his belief and conduct must
have been objectively
reasonable, as would have been exercised by a person using ordinary
care and prudence.”
[43]
Neethling, Potgieter and Visser
Law
of Delict
[23]
deal
with the test for the absence of reasonable and probable cause as
follows:
‘
There is an
absence of reasonable and probable cause for the prosecution either
(i) if there are, from an objective viewpoint, no
reasonable grounds
for the prosecution, or (ii) if, where such grounds are in fact
present, the defendant does not, viewed subjectively,
believe in the
plaintiff’s guilt. The defendant will thus be acquitted if, on
the one hand, there existed reasonable grounds
for the prosecution
and, on the other hand, he also believed in the plaintiff’s
guilt.
(i)
The
question of whether reasonable grounds exist may only be answered
by reference to the facts of each particular case. The
facts must then
reasonably, or according to the
reasonable person, indicate that the plaintiff
probably
committed the crime
.’
[emphasis supplied]
[44]
The evidence revealed the thrust of the plaintiff’s case to be
that the SAPS members conspired to instigate charges against
him, not
for any lawful purpose, but to deliberately thwart his investigations
in PITU. In
Tsose
v Minister of Justice and Others
[24]
Schreiner JA held, in the context of motive for an arrest, that:
‘
If the object
of the arrest, though professedly to bring the arrested person before
the court, is really not such, but is to frighten
or harass him and
so induce him to act in a way desired by the arrestor, without his
appearing in court, the arrest is, no doubt,
unlawful. But if the
object of the arrestor is to bring the arrested person before the
court in order that he may be prosecuted
to conviction and so may be
led to cease to contravene the law the arrest is not rendered illegal
because the arrestor’s
motive is to frighten or harass the
arrested person into desisting from his illegal conduct. An arrest is
not unlawful because
the arrestor intends and states that he intends
to go on arresting the arrested person till he stops contravening the
law if the
intention always is after arrest to bring the arrested
person duly to prosecution. In such a case the only remedy of the
arrested
person would be an action for malicious prosecution in which
he would have to prove not only an improper motive but also the
absence
of reasonable cause for the prosecution. An arrest is, of
course, in general a harsher method of initiating a prosecution than
citation by way of summons but if the circumstances exist which make
it lawful under a statutory provision to arrest a person as
a means
of bringing him to court, such an arrest is not unlawful even if it
is made because the arrestor believes that arrest will
be more
harassing than summons. For just as the best motive will not cure an
otherwise illegal arrest so the worst motive will
not render an
otherwise legal arrest illegal.’
[45]
This approach was followed by the court in
National
Director of Public Prosecutions v Zuma
[25]
in the context of a malicious prosecution claim:
‘
[37] The court
dealt at length with the non-contentious principle that the NPA must
not be led by political considerations and that
ministerial
responsibility over the NPA does not imply a right to interfere with
a decision to prosecute (para 88 et seq). This,
however, does need
some contextualisation.
A prosecution is not wrongful
merely because it is brought
for an improper
purpose. It will only be wrongful if, in addition, reasonable and
probable grounds for prosecuting are absent
,
something not alleged by Mr Zuma and which, in any event, can only be
determined once criminal proceedings have been concluded.
The motive
behind the prosecution is irrelevant because, as Schreiner JA said in
connection with arrests, the best motive does
not cure an otherwise
illegal arrest and the worst motive does not render an otherwise
legal arrest illegal. The same applies to
prosecutions.
[38] This does not,
however, mean that the prosecution may use its powers for “ulterior
purposes”. To do so would breach
the principle of legality. The
facts in
Highstead Entertainment (Pty) Ltd t/a “The Club”
v Minister of Law and Order and Others
illustrate and explain the
point. The police had confiscated machines belonging to
Highstead
for the purpose of charging it with gambling offences. They were
intent on confiscating further machines. The object was not to use

them as exhibits – they had enough exhibits already – but
to put
Highstead
out of business. In other words, the
confiscation had nothing to do with the intended prosecution and the
power to confiscate was
accordingly used for a purpose not authorised
by the statute. This is what “ulterior purpose” in this
context means.
That is not the case before us. In the absence of
evidence that the prosecution of Mr Zuma was not intended to obtain a
conviction,
the reliance on this line of authority is misplaced as
was the focus on motive.’
[emphasis supplied]
[46]
It bears emphasis that the onus rests upon the plaintiff to prove
both malice and the absence of reasonable and probable cause.
This
much is clear from
Woji
.
[26]
The contents of all the dockets handed over by Knipe and Rossouw to
the prosecuting authority, although available to the plaintiff,
were
not placed before the court during the trial. In his testimony the
plaintiff dealt only with parts of the dockets on the Williams
count
and the counts of drunken driving and leaving the scene of an
accident.
[47]
During the second defendant’s application for absolution at the
close of the plaintiff’s case it was argued that
his failure to
deal with the contents of the dockets in relation to almost all of
the charges against him was fatal to his case,
because he bore the
onus of proving what was placed before the prosecution by Knipe and
Rossouw when the decision to prosecute
him was made. On the other
hand it was argued on behalf of the plaintiff that he bore no such
onus because, but for the actions
of the SAPS members, there would
have been no dockets to be placed before the prosecuting authority in
the first place. Given that
the test for absolution at the close of a
plaintiff’s case is different from a determination on the
merits at the end of
a trial, I declined to make any specific finding
on the issue at that point. I did however take it into account when
refusing absolution,
but merely on the basis that the plaintiff’s
argument might have some merit at that stage.
[48]
At the end of the trial the plaintiff’s counsel submitted that
although, strictly speaking, the burden does not pass
to the second
defendant insofar as the “overall onus” is concerned,
given my finding at absolution stage that the plaintiff
had met the
low threshold of a
prima facie
case, an evidentiary burden was
placed upon the second defendant to rebut that
prima facie
case.
[49]
However, as pointed out by counsel for the second defendant, in
Zeffertt
et
al
The
South African Law of Evidence:
[27]
‘
(c) The
shifting of the evidentiary burden during the trial
It is important to
notice that there are only two occasions during a trial when the
judge will give a ruling concerning the evidential
burden or duty to
adduce evidence. First, he or she will rule upon the incidence of the
burden in order to decide who has the right
to begin. This may
involve deciding, as in
HA Millard & Son (Pty) Ltd v
Enzenhofer
, whether the duty has been “shifted” by
admissions on the pleadings. Secondly, there may be an application
for the
discharge of the accused or absolution from the instance.
Here the judge will rule upon whether or not the evidential burden,
in
the sense outlined above in this chapter, has been discharged.
Apart from these two
instances, a “shifting” of the evidential burden during
the trial has no legal or other significance
because it cannot form
the subject of a ruling by the judge. Judges nevertheless frequently
speak of further shiftings produced
by evidence given in the course
of the action. The trial appears to be regarded as a tennis match in
which the evidential burden
is kept in play between the parties. But
the metaphor is misleading, because there are no points to be gained
merely by sending
the evidential burden back across the net, and what
is more, no one is keeping score. Once the trial has begun:
“…
the
judge…trying the case is not concerned to form provisional
conclusions from time to time as to which party then has the
balance
of probabilities on his side and there is no means of knowing whether
such conclusions have been formed.”
Even a refusal of
absolution tells a defendant no more than that the plaintiff has
discharged his initial duty to lead some evidence
in his or her
favour: if he or she closes his or her case without leading any
evidence he or she may still find that he or she
has won. The only
other stage at which the court will give a ruling is after it has
heard all the evidence, and then it will simply
decide whether the
party who bore the onus has discharged it.’
Evidence on the
disputed issues
[50]
During his testimony the plaintiff was referred to the letter of 18
June 1996 in which its recipients were informed that PITU’s

reporting line would be to Mandela and Fivaz (and not Mandela and
Mufamadi). His explanation was that:
‘…
it
would have been very suspicious…and suspect to these
people…that we are reporting directly to the President…the

sensitivity of
[the]
information…led
us to establish this unit in a covert matter and this is why we
addressed this letter so that there are no
questions asked, it is
understood within police circles that when you have a covert
operation that no further questions are asked
about it.’
[28]
[51]
He confirmed however that he reported his complaints about
interference with the unit, not only to Mbeki and Mufamadi, but
to
Fivaz as well. At the meeting in August 1997 Fivaz told Mbeki that he
was in possession of a lengthy statement from a former
member of the
unit and had instructed that an investigation be carried out ‘
to
determine the validity of that affidavit’
.
[29]
It is common cause that it was Smith who deposed to that affidavit.
[52]
Prior to the issue of the new mandate of 29 August 1997 there were no
limitations placed on what could be investigated by PITU:
‘
When an area of
concern was raised … through any of the other government
structures it was simply shifted over to the PITU
by either Minister
Mufamadi or the Deputy President himself.’
[30]
[53]
The first occasion that Fivaz expressed concern about the reporting
line was at the meeting with Mbeki, Mufamadi, the plaintiff
and
Viljoen in August 1997. Before that meeting the plaintiff was unaware
that he was, as he put it, being investigated by Knipe
and Rossouw:
‘
I had no idea
that they were investigating me up and until the National
Commissioner said that he would order such an investigation.’
[31]
[54]
According to the plaintiff Fivaz did not provide him with feedback
about the complaints contained in his letter of 5 October
1997
(prompted by the Mail & Guardian article). Members of his unit
(Van der Westhuizen, Captain Michael Benn and Viljoen)
were
threatened and intimidated by Knipe and Rossouw during their
investigation (as was Smith, although he had already left the
unit by
then). The plaintiff was not treated in a similar manner. According
to him the first interaction he had with Knipe and
Rossouw was when
he was arrested on 18 February 1998.
[55]
On the eve of his testimony in the regional court trial, the
plaintiff was approached by a Mr Fraser, the provincial head of
the
NIS. He tried to persuade the plaintiff ‘
not to contest’
the evidence of Mufamadi (who testified as a state witness):
‘…
the
reason being that it was said to have implications for the country…I
should rather just plead guilty to some of the lesser
charges…
[32]
…
that should I
plead guilty I would be sentenced to a term in prison but the Agency
will ensure that I don’t spend more than
a week in prison.’
[33]
[56]
The plaintiff later disclosed this to the presiding magistrate during
the course of his cross-examination. He also reported
it to Director
Veary of the NIA and laid a charge. He was then summonsed to Adv
Niehaus of the prosecuting authority who advised
him not to proceed
with the charge because he would be found guilty anyway. The evidence
of Mufamadi that the plaintiff was asked
‘
not to contest’
was not explained and neither Veary nor Niehaus testified.
[57]
The plaintiff gave evidence in relation to each of the charges that
he faced in the regional court. In respect of each charge
his version
was exculpatory. Had the plaintiff not withdrawn his claim against
the first defendant, it would have been necessary
to deal with this
evidence in order to evaluate whether or not the prosecuting
authority should have proceeded with the prosecution.
However, given
that the plaintiff’s claim lies only against the second
defendant, what is relevant is the plaintiff’s
evidence
concerning what the SAPS members did to instigate the charges against
him. The plaintiff’s testimony in this regard
was as follows.
[58]
Count 39 related to the plaintiff’s trip to Angola with
Palazzolo. The latter testified as a court witness during the

regional court trial. The plaintiff’s evidence was that ‘…
if
I am correct he had numerous consultations with Mr Knipe and Mr
Rossouw on the topic of the Angola money’.
[34]
The plaintiff was then referred to Palazzolo’s evidence during
the regional court trial in which Palazzolo denied any such

consultations:
‘
I only
was…harassed by him that he wants a statement from me. That is
the only reason he came to see me all the time. He
was always after
me asking for a statement, a statement, a statement, but I never
consulted with him.’
[35]
[59]
The following passage from the plaintiff’s evidence in chief is
also relevant:
‘
Have you ever
made any enquiries why the investigators in your case went to Mr
Palazzolo to make statements in your matter. Palazzolo
being the main
target of Operation Intrigue--- M’Lady, I did find it strange
that they would engage the main target of the
investigation but I
think that when I look at the – I don’t know if it is
correct to say the intention, M’Lady,
was to discredit the
investigation more than to do anything else. The intention was to
discredit me and inform Mr Palazzolo that
I was in fact investigating
him rather than as to what he believed, that I was his friend.’
[36]
[60]
Count 41 related to the plaintiff’s approval of payment for a
flight from East London to Cape Town for a potential informer,
Alvira
Williams. She was not called to testify on the plaintiff’s
behalf. She did however testify as a state witness in the
regional
court trial where, according to the plaintiff, she complained of
Rossouw placing pressure on her to make a statement.
[61]
Counts 46 and 47 were the charges pertaining to drunken driving and
leaving the scene of an accident. It is common cause that
a Dr
Stofberg examined the plaintiff some hours after the accident.
Stofberg made a statement to Knipe and Rossouw. It was the

plaintiff’s evidence that:
‘
M’Lady,
Dr Stofberg made a statement to Mr Knipe and Mr Rossouw. I would just
like to add, M’Lady, that statement was
altered
by
the prosecutor
where
he himself went to Dr Stofberg and informed him that he cannot
remember all the details of such a while back…and it
was in
the own writing of
the
prosecutor,
Mr B
ouwer,
that he changed the statement of Dr Stofberg.’
[37]
[emphasis
supplied]
[62]
In respect of the counts on which he was acquitted in the regional
court, the plaintiff’s evidence in relation to the
involvement
of the SAPS members was as follows.
[63]
Count 32 was a charge of fraud based on the plaintiff claiming an
allowance in respect of an overnight stay at a hotel while
on
detached duty in Johannesburg. The plaintiff referred to Standing
Order Finance 35
[38]
which
stipulated
inter
alia
that
accommodation for ‘
Nie
Blankes’
police
officers on detached duty was limited to a suitable tent (white
police officers had the choice of a caravan or suitable tent).

According to the plaintiff this evidence was adduced during Knipe’s
testimony as investigating officer in the regional court
trial.
[64]
Count 38 was a charge of fraud in respect of an informer’s fee
claimed by the unit. The informer had been placed by the
unit in the
office of Palazzolo’s attorney, a Mr Prisman. The plaintiff’s
testimony was that:
‘
They at all
costs wanted to know who this informer was and this is what this
charge in my opinion was meant to do, was meant to
uncover who the
informer was…a range of people wanted to know. The
investigators in this matter wanted to know. The prosecutor
wanted to
know. Mr Prisman wanted to know. Even Attorney-General Frank Kahn at
the time wanted to know.’
[39]
[65]
Count 40 related to the alleged theft of safe house furniture under
the plaintiff’s control, which he moved to his private

residence because there was no available facility to store it.
Rossouw arrived at his home one morning with an official from the

Supply Chain Department. Together they confiscated the furniture. The
plaintiff recalled having a discussion with Rossouw and/or
Knipe
about the furniture but could no longer recall the content, other
than being told that it was unlawfully in his possession.
[66]
Count 42 was withdrawn. Counts 43 to 45 pertained to obstructing or
defeating the ends of justice, and the unauthorised removal
of a
prisoner in contravention of the Correctional Services Act
[40]
(referred to during the trial as the Mangiagalli counts). The
plaintiff’s testimony was as follows:
‘
Now during your
interview with Mr Knipe and Rossouw prior to the charges being
brought against you did you discuss this Mangiagalli
count with
him?--- Yes M’Lady, it would have been discussed as well.
Can you recall any
explanation that you were given
[sic]
to Mr
Knipe about this?--- M’Lady, I don’t think there was
anything to hide with regards to the use of Mangiagalli because
at
the time he was already blown and that
Correctional
Services had given their full authority for it so there was nothing
to hide and we told it like it is.’
[41]
[67]
The plaintiff testified that the first time he saw Smith’s
statement, dated 16 July 1997, was when he consulted with
his legal
representatives to prepare for trial in this matter. His evidence was
that:
‘…
it is
very clear when one reads through the statement that Mr Smith
maliciously went out of his way to attack my person and character
in
a very dishonest way.’
[42]
[68]
By 16 July 1997 the plaintiff’s relationship with Smith had
completely broken down and the latter had recently left the
unit.
When Smith was first seconded from the Organised Crime Unit their
relationship was, in the plaintiff’s words, ‘
workable’
.
Smith had been interacting with Interpol as well as the Italian
police on a range of issues pertaining to Palazzolo under a very

broad (and apparently uncontrolled) mandate. Smith was thus useful to
the plaintiff.
[69]
However over time he came to realise that Smith was intent upon
continuing to interact, particularly with the Italian police,

entirely at his own discretion and without regard to the unit’s
mandate. The relationship began to sour when the plaintiff
took steps
to curb this, only to discover that Smith nonetheless persisted. He
discovered that Smith falsely told the Italian police
that the
plaintiff was ‘
working
with’
[43]
Palazzolo
to prevent them from arresting him in South Africa. He also suspected
Smith of leaking false information to the press
and had proof of such
information having been given to the Italian police. During May 1997
the plaintiff thus appointed Captain
Michael Benn who took over many
of the roles that Smith previously fulfilled. This caused Smith’s
resentment to increase.
[70]
The plaintiff was taken through Smith’s lengthy statement
[44]
in which he was repeatedly implicated in a corrupt relationship with
Palazzolo and several of his associates. Not only was this
rejected
by the plaintiff as an outright lie, but he explained that it was a
necessary part of his legend to be on friendly terms
with these
individuals to promote his investigation into their activities. What
is relevant in the context of this matter is that
the plaintiff was
never charged with corruption on account of his relationships with
Palazzolo or any of his associates.
[71]
He was also referred to various allegations made by Smith in respect
of the latter’s involvement in setting up the unit
and his
status within the unit himself. The plaintiff’s response was
that Smith self-evidently had an over-inflated sense
of his own
importance which bore little relation to the reality of what he had
in fact been tasked to do.
[72]
Smith also made allegations about the plaintiff’s regular
drinking sprees and consequent disorderly behaviour which the

plaintiff testified were entirely devoid of truth.
[73]
Smith’s statement included a number of allegations of the
plaintiff’s irregular dealings within the unit. The plaintiff

responded to each one. Some he rejected as products of Smith’s
delusions. In respect of the others he gave exculpatory explanations.

The plaintiff later conceded that many of these allegations had a
direct relation to charges that he ultimately faced in the regional

court trial. They were counts 1 to 10 (vehicles); 11 to 32 and 42
(subsistence and travel), 33 to 34 (safe houses), 35 to 37
(informers’
fees), 39 (Angolan trip), 40 (furniture) and 43 to
45 (Mangiagalli).
[45]
[74]
Smith’s statement ended as follows:
[46]
‘
It is my
submission that Director Lincoln has established the Presidential
Task Unit purely as a monitoring basis to protect the
interest of
Vito Palazzolo and his associates, as it is very clear that Director
Lincoln has been familiar with Palazzolo for several
years. The fact
that Director Lincoln pretends and wants to make everybody believe
that he is working undercover is a typical intelligence
strategy
although Palazzolo and his associates know that Director Lincoln is a
member of the South African Police Service.
I feel that I was
misused for my knowledge and expertise as an experienced policeman.
The South African
police have been placed in total discredit with the Italian
authorities.
Director Lincoln is
abusing his authority as a police officer as well as the police
resources which has been allocated to him as
well as large sums of
state money for his own personal motives and gain.
I further feel that
Director Lincoln is abusing the politicians who he in the process is
compromising in his own activities which
creates negativity amongst
senior officials in Government Departments. It is a proved fact that
on many occasions disinformation
was put forward by Director Lincoln
to the Deputy President Mbeki and Minister Mufamadi.
To date no arrests
have been executed on any of the Italian fugitives and the copies of
their arrest warrants have gone missing
from the offices of the
Presidential Task Unit. I suspect that Director Lincoln had removed
the documents.
On 1997-07-10 Director
Lincoln held a meeting at the office and addressed all members that
“Project Intrigue” has now
been terminated on the basis
that Vito Palazzolo has submitted an application for amnesty for past
political crimes committed,
including the death of Anton Lubofski
[sic].
I announced that I
have no further function at the Presidential Task Unit and handed in
all my equipment and vehicle. I was instructed
by Director Lincoln to
leave all documentation pertaining to “Project Intrigue”
behind.
I feel that the
Palazzolo investigation must be addressed but should be done in an
organised manner by a unit such as Organised
Crime without any
ulterior motives.
I request that on the
basis of this affidavit a comprehensive criminal investigation be
launched against Director Lincoln and those
associated with him.’
[75]
It is common cause that on 14 June 2010 a full bench of this division
found that the Italian arrest warrants could not be executed
in South
Africa. It was the plaintiff’s testimony that he had repeatedly
informed Smith that this was the legal position
before the latter
left the unit but that Smith was not prepared to accept it. The
plaintiff also testified that there was no substance
in the
allegations made by Smith about the termination of the unit which
continued to execute its mandate even after he was arrested
on 18
February 1998. Palazzolo never applied for amnesty; and that,
contrary to Smith’s allegations, Fivaz issued PITU’s

“new” mandate the month
after
Smith left the unit.
It was Benn who continued the investigation into Palazzolo until
February 1998 when the plaintiff was arrested.
It was then handed
over to Inspector Piet Viljoen.
[76]
The following passage of the plaintiff’s evidence is also
relevant:
[47]
‘
Why do you
think that Mr Knipe and Mr Rossouw so vociferously investigated all
these charges against you? --- M’Lady, I entered
the South
African Police via the Department of Intelligence and Security of the
ANC. Early in my evidence I had given – said
that a large part
of my work was the infiltration of Security Branch members of the
South African Police Force. M’Lady, I
believe that my actions
in Cape Town were very successful, because there was a total number
of five Security Branch policemen who
were reporting to me on the
activities of the Security Branch. During that interaction, M’Lady,
with members of the Security
Branch, I also became interested in the
activities of the South African Narcotics Bureau and the Murder and
Robbery Unit, and in
particular the Murder and Robbery Unit, M’Lady,
because that unit had a function to play within the apartheid
apparatus.
In the Western Cape a notorious name in that unit was Mr
Leonard Knipe. Now, M’Lady, I know that with the bombing of
Community
House in Salt River and with the shooting of the Gugulethu
Seven in Gugulethu, that the Murder and Robbery Unit had a crucial
role
to play in sweeping those crime scenes. And when I say
“sweeping” those crime scenes, is to clear it of all
evidence
that will take it back to the activities of the Security
Branch or the South African Police. M’Lady, I also knew of
times
when another notorious Security policeman, Mr Jeff Benzien, had
arrested comrades of mine and taken them around what we would call
a
point-out, and in some of those Mr Knipe was also featured. When I
started the investigation in Cape Town, M’Lady, I also
made no
bones about the fact that I knew about the activities and operations
of a certain group of policemen who worked towards
looking after each
other, and I refer specifically here to Club 35. I think, M’Lady,
the conditions that I stand before you
here and the conditions in the
criminal court are somewhat different, in the sense that I can speak
here with a lot more freedom,
and I can say to you M’Lady, that
I am only of the opinion that Mr Knipe knew that I knew
about the
activities of the Murder and Robbery
U
nit. And it’s not only those two; there are other
activities as well, M’Lady. But
those two, the
bombing of Community
House, as well as the
killing of the seven members of the ANC’s Umkhonto
we Sizwe at Gugulethu, commonly known as the Gugulethu
Seven, that
Mr Knipe and his unit were actively
involved there, and I can think this is the
only
reason why I was so vigorously pursued by him
.
The information that
you have just testified about, was that ever part of the TRC
proceedings? --- Yes, M’Lady, it was.
Can you recall who
testified about the Gugulethu Seven at the TRC? -
-- Mr Knipe did,
M’Lady.’
[emphasis
supplied]
[77]
During cross-examination, while conceding the direct relation between
many of Smith’s allegations and a number of the
charges that he
ultimately faced, the plaintiff maintained that Smith was essentially
used as a pawn in the conspiracy against
him:
‘…
this
statement made by Smith or alleged to be made by Smith is not a
statement of Smith on his own. This was a pre-determined document,

M’Lady. This document that is before the court is the document
that they decided on how they were going to get rid of me
out of the
Presidential Task Unit and Smith was the weak link who was used to
depose to this affidavit…’
[48]
[78]
The plaintiff conceded that the conspiracy played no role in the
instigation of charges against him on counts 46 and 47 (drunken

driving and leaving the scene of an accident):
‘
There is no
conspiracy by anybody, nobody instigated the, that investigation. It
was because you collided with stationery vehicles.
An investigation
commenced as a result. Is that right? --- That is correct,
M’Lady.’
[49]
[79]
The plaintiff was referred to an Information Note prepared by Bouwer
and Senekal of the Evaluation Services Unit dated 19 August
1997.
[50]
The document was addressed to Fivaz, referred to a previous
information note of 25 July 1997, and contained details of what were

referred to as ‘
certain
harrowing factors’
uncovered
during a further visit to the Western Cape. In addition to ‘
findings’
of
possible maladministration within PITU, largely at the plaintiff’s
instance, as well as alleged interference in existing
SAPS
investigations by PITU, it also referred to ‘
criminal
and/or departmental offences’
.
These were listed as follows:
79.1. A docket opened at
Goodwood Police Station in December 1996 in respect of charges laid
against the plaintiff and Smith of
crimen injuria
and
disturbance of the peace, which the Attorney-General declined to
prosecute on 7 August 1997;
79.2. A docket opened at
Elsies River Police Station during August 1997 following a charge
laid against the plaintiff by a Mr Oelofse
for allegedly firing a
shot at him during a private gathering, which Knipe was
investigating;
79.3. The Mangiagalli
affair which the Kirstenhof police were investigating (a docket
having been opened in August 1997) and which
was also the subject of
a Ministerial enquiry;
79.4. The docket in
respect of the charges of drunken driving and leaving the scene of an
accident, being investigated by the Cape
Town police; and
79.5. An alleged attempt
on the plaintiff’s life in which he was shot in the foot in
June 1997, which was being investigated
by Rossouw.
[80]
The plaintiff conceded that Knipe could not have been involved in
laying any of these charges. He also conceded that, in the
normal
course, it would have been appropriate to investigate the allegations
contained in the Information Note. He insisted however
that in his
case the investigation which followed was part of the hidden agenda
to oust him. He then claimed that Knipe was in
fact involved from the
very beginning and ‘
was part and parcel of it’
, as
were others:
‘
Well, on the
face of it, if one does not know about any hidden agendas, on the
face of this document there are potentially significant

irregularities and possible criminal conduct that required to be
investigated. Would you agree? -
-- No, M’Lady,
on the face of it, from the National Commissioner, George Fivaz,
right down to everybody who was involved in
this investigation, knew
about the agenda that was being played out. It wasn’t a matter
of somebody reading this and on the
face of it making a decision. Not
at all M’Lady.’
[51]
[81]
The plaintiff conceded that at the Mbeki meeting of August 1997, it
was Viljoen (a member of his own unit) who agreed that
Knipe be
appointed as lead investigator because of his objectivity. He
conceded that he raised no objection to, or misgivings about,
the
investigation or Knipe’s appointment, but maintained that in an
earlier private discussion with Mbeki he had briefed
him on Knipe’s
agenda, and that Mbeki knew all about the conspiracy which was
already well under way. Mbeki did not testify
on the plaintiff’s
behalf. Nor did Viljoen who, on the plaintiff’s version, was
present at that private discussion
which took place a few hours
before the meeting. The plaintiff maintained that (notwithstanding
the concerns allegedly expressed
to Mbeki in private) it was
immaterial to him who was appointed because he had nothing to hide.
[82]
The plaintiff was referred to his evidence during the regional court
trial in which he testified that at the Mbeki meeting
a discussion
took place about who could be trusted to lead the investigation, that
it was Viljoen who suggested Knipe, and that
he had agreed. When
confronted with this testimony the plaintiff was evasive.
[52]
He conceded that the Attorney-General declined to prosecute him on
the attempted murder charge laid by Oelofse and that no police

officer was involved in laying that charge. He also conceded that the
investigation into the charges of drunken driving and leaving
the
scene of an accident was initially conducted by police officers other
than those named in his pleadings:
‘
M’Lady,
the investigation…at the initial stages, yes, it had nothing
to do with Mr Knipe or Rossouw or anybody else,
but it was ultimately
taken over by them.’
[53]
[83]
The plaintiff conceded that during their investigation Knipe and
Rossouw presented the prosecuting authority with a number
of dockets,
but as the investigation progressed several decisions were taken not
to prosecute him. He also conceded that he had
not previously voiced
any complaint against Knipe or Rossouw about the manner of the
investigation, but maintained that:
‘
M’Lady,
no, I did not because we took this matter on appeal, it was, it was
not about levelling a complaint against them,
because I just didn’t
have the faith at that time that anything would have been done about
it.’
[54]
[84]
It was demonstrated that the only formal objections noted by the
plaintiff were to Knipe’s presence when Smith and Van
der
Westhuizen testified in the regional court on the ground that he had
pressurised them. The plaintiff thereafter claimed that
he did
informally raise his concerns with Mbeki on three occasions. In
particular, he told Mbeki that witnesses (including members
of the
unit) were being pressurised to make statements against him. However
Mbeki advised him to let the investigation run its
course.
[85]
The plaintiff was asked to identify the witnesses who he alleged were
forced to make false statements against him. Initially
he could only
name Benn and then, with some prompting, Van der Westhuizen, Smith
and informers April and Gillot. His evidence was
that Williams had
not lied but was pressurised to make a statement. As far as Palazzolo
is concerned he provided the names of an
Advocate Joubert and a
Director Human who apparently interviewed Palazzolo because Knipe was
unable to convince him to make a statement.
[86]
He was referred to the evidence of these witnesses in the regional
court trial. Smith testified as a section 204 witness and
gave
evidence about the pressure he was placed under by Knipe to tell the
truth. Van der Westhuizen denied being pressurised to
make a false
statement. April, also a section 204 witness, testified that he
initially made false statements concerning the motor
vehicle
collision because he did not want the plaintiff to lose his job. He
made no mention of being pressurised.
[87]
Palazzolo was called as a section 186 witness by the court and
testified that he was an unwilling witness and had not wanted
to
co-operate with Knipe because the plaintiff was his friend. He did
not suggest that he was placed under pressure to falsely
incriminate
him. Benn, also a section 204 witness, testified that he earlier made
a false statement to protect the plaintiff. In
her evidence Gillot
made no mention of being pressurised to falsely implicate the
plaintiff. The latter nonetheless maintained
that despite all of
this:
‘…
I think
the reality that we faced at the time, is that each and every single
witness was put under immense pressure to give evidence
against me,
false as it may be, they were put under pressure.’
[55]
[88]
Williams initially made a statement incriminating the plaintiff. She
subsequently gave an exculpatory one after a Mr John Adams,
who the
plaintiff described as ‘
an old and long-standing friend’
of his, intervened of his own volition. The evidence of Williams
in the regional court trial was that:
‘
Mr Rossouw
explained to me that I am a witness with regards to Andre Lincoln,
that he requires a statement from me. That’s
all he explained.
He didn’t actually go into details about the case and my boss
was in the office at
the
time, when he came there and he heard whatever was said between
Rossouw and myself. And I had only started, I was just working
for
about 2 to 3 weeks, and that’s the reason why they actually
made it as a retrench…not as firing me, it was more
like a
retrenchment.’
[56]
[89]
Her evidence was thus that she experienced Rossouw having come to her
place of work as intimidating, not that Rossouw himself
had said
anything to intimidate her. It was because her employer overheard
their conversation that she was retrenched, not as a
result of
anything that Rossouw had said or done. It was also demonstrated that
when Knipe testified in the regional court trial
it was not suggested
that he treated any of these witnesses improperly, apart from Smith,
or had them lie under oath. Knipe himself
readily conceded in that
trial that he placed tremendous pressure on Smith. He said he did so
because he wanted to be sure that
Smith was telling the truth.
[57]
The plaintiff also conceded that it was never suggested to Rossouw in
the regional court trial that he interfered with witnesses
or
improperly placed pressure on them to testify untruthfully against
him.
[90]
According to the plaintiff Club 35 consisted of 35 senior ranking
white Afrikaans policemen who looked after the interests
of the old
guard and Rossouw was the chairperson. The plaintiff however conceded
that this was never canvassed with Rossouw when
he testified in the
regional court trial:
‘
Nothing was put
to him in his evidence about his involvement in Club 35, or the
sinister motives of Club 35. Do you have any comment
to that? ---
Yes, M’Lady, because Club 35 was not on trial, I was.
But I’m simply
putting to you, Mr Lincoln, if that had been a complaint with Mr
Rossouw, it should have been raised with Mr
Rossouw when he testified
and it wasn’t done. --- As I say, M’Lady, Club 35 was not
on trial, I was.’
[58]
[91]
The plaintiff agreed that all of the dockets were made available to
his legal team before the present trial commenced. He was
referred to
those on counts
46
and 47 (being drunken driving and leaving the scene of an accident).
These dockets show that before Knipe and Rossouw became
involved the
initial investigating officer, Captain Bock, had already obtained
several incriminating statements from independent
lay witnesses.
[59]
[92]
After Rossouw took over others were obtained. Without going into any
detail there can be little doubt that the contents of
these
statements, self-evidently, were such that reasonable and probable
cause to prosecute was established. The plaintiff himself
conceded as
much although he nonetheless clung to his conspiracy theory:
‘
M’Lady,
like I’ve answered countless times in this court, if you look
at it on the face of things, then, yes, I can
agree with it. But in
this particular investigation…I cannot accept that as being
the correct version as has been put to
me now.’
[60]
[93]
The plaintiff then suggested that all of the statements taken by
Rossouw were worded in the same manner in order to increase
the
prospects of his prosecution. However the contents of the statements
indicate the contrary.
[94]
The plaintiff was referred to an extract from the final report of the
Truth and Reconciliation Commission (TRC)
[61]
in which Knipe was mentioned as having been involved at the scene and
subsequent investigation after the Gugulethu Seven massacre,
but in
no way implicated in any wrongdoing. His response was that for 20
years it was a well-kept secret that Knipe’s presence
there was
to clean the scene and to remove any evidence that could implicate
the police. He conceded that Knipe (who testified
at the TRC
hearings) did not apply for amnesty, but claimed that Knipe had not
needed to because he was not a member of the security
police at the
time, but a member of the murder and robbery squad, and had not
murdered anyone.
[95]
He denied that Knipe’s role at the scene was to take
photographs, videos and collect certain exhibits. However when it

became apparent that he could not dispute this, the plaintiff
suggested that ‘…
maybe
that’s why…the forensic evidence was questionable’.
[62]
The plaintiff did not offer a single shred of evidence to support
this allegation although, on his own version, he must have been
able
to do so.
[96]
The plaintiff could not dispute that Knipe testified a second time
before the TRC in June 1997 in relation to the KTC hearings
and was
thanked for his helpful input. As far as the Community House bombing
in Salt River in 1987 is concerned, the plaintiff
was also unable to
dispute that the findings of the TRC in no way implicated Knipe.
Again his response was that this is because
Knipe “took care”
of the crime scene. He again failed to offer any evidence in support
of this bald allegation. When
it was pointed out that Knipe had never
attended that scene, the plaintiff responded that he was in charge of
the unit whose members
did attend and he was thus involved. He was
referred to a second extract from the TRC final report
[63]
in respect of the Community House bombing which made no mention of
Knipe’s involvement. He nonetheless doggedly maintained
that
Knipe was involved but still provided no detail.
[97]
The remaining witness who testified on the plaintiff’s behalf
was Mr Zenzile Khoisan, a journalist with 30 years’
experience.
He testified that he was one of the journalists who covered the
plaintiff’s trial in the regional court, and
the author of
various newspaper articles that appeared in the Mail & Guardian
and Cape Argus newspapers over that period. He
was referred in
particular to his article that appeared in the Mail & Guardian in
its edition of 24 to 30 November 2000, the
salient portion of which
read as follows:
[64]
‘
Cop
threatened to topple govt
New evidence has
emerged of how the national head of violent crimes, Commissioner
Leonard Knipe, used his senor position in the
police to intimidate
witnesses and threatened to topple the African National Congress
government.
According to tape
recordings in the possession of the Mail & Guardian, Knipe
threatened to “bring down” the ANC
government if it
continued with a covert operation aimed at exposing senior civil
servants and senior policemen connected to Mafia boss Vito Palazzolo…
The tape in the
possession of the M&G was covertly recorded by former unit member
Detective Inspector Abraham Smith, who has
been testifying during the
trial of the unit’s director, Andre Lincoln…
On the tape Knipe
says: “I’ll bring down the government. I’ll get
every chap to resign,
as 'n ou weer na my kom met a koeverte
operasie
[…if another guy comes to me with a covert
operation]”.’
[98]
His evidence was that he was given the recording by a ‘
very
well- placed…unimpeachable source’
[65]
whose identity he was not prepared to disclose for reasons of
confidentiality. After listening to the recording and informing his

editor, he contacted Smith telephonically and took him through the
recording, asking Smith several questions for verification purposes.

Smith told him that he made the recording (during one of his
interviews with Knipe) to protect himself. Satisfied as to the
recording’s
authenticity he proceeded to have the article
published. Khoisan was not approached to retract the article after
its publication.
[99]
During cross-examination his evidence was that, given the passage of
time, he no longer had the recording nor any knowledge
of its
whereabouts. (It is common cause that Smith made a recording during
an interview with Knipe, but that no transcript of that
recording was
ever produced).
[100]
Khoisan was referred to Smith’s cross-examination in the
regional court trial:
[66]
‘
Now at some
stage you tape-recorded a conversation that you had with Assistant
Commissioner Knipe, correct? --- That’s correct.
Why did you do that?
--- …I felt it necessary at the time to record Commissioner
Knipe because of the verbal abuse…
I knew that going into
another interview with him it’s going to most likely occur that
he’s going to use abusive language
towards me…and I
therefore recorded him whereby certain remarks and swearing was
directed my way which was putting me under
pressure at the time…I
never had it directed to tape Commissioner Knipe, but I did this
purely to protect my own interests.’
[101]
Khoisan could not dispute that nowhere in his evidence did Smith
refer to Knipe’s threat to bring down the ANC government.
He
conceded that he had not made a transcript of the recording, but
stated that he would in all probability have made notes which
he no
longer had. He could not recall whether the Mail & Guardian
editor requested a copy of the recording but was ‘
reasonably
certain…that I endeavoured to play the tape…to the
editor’.
[67]
Contrary to his earlier evidence, Khoisan then testified that he had
more than one conversation with Smith. Later this version
changed
again:
‘
The
conversation with Mr Smith – it wasn’t a very, very, very
long conversation – it was to, number one, verify
that I was
speaking to Mr Smith; number two that I wanted to look at the issues
that were on the tape, and specifically the statements
that were made
and attributed to, I think it was to Director Knipe. And then the
last one was to – where I verified with
Mr Smith that he made
the recording.’
[68]
[102]
He conceded that he did not meet Smith in person. When told that
Smith would deny having had any conversation with him, he
responded
that Smith had never taken issue with the contents of the article. He
was told that both Smith and Knipe would deny that
the tape contained
any threat to bring down the ANC government but he maintained that
this was indeed on the recording. He could
not dispute that,
following the publication of the article, the police conducted an
internal investigation at ministerial level.
They obtained a copy of
the tape but, due to its poor quality, it could not be properly
transcribed. The allegations were nonetheless
investigated and Knipe
was cleared of any wrongdoing. He similarly could not dispute that
some five months after the Mail &
Guardian article was published,
Knipe was awarded the South African Police Service Star for
Outstanding Service by the Minister
of Safety and Security who at the
time was Minister Steve Tshwete. However he demonstrated his personal
bias against Knipe when
he immediately thereafter testified that:
‘
Ja, I take
exception to that, M’Lady, because there are certain matters
that come from the TRC time that would really question
why a police
service would give such a prestigious award to a person who has the
history of the police officer known as Leonard
Knipe.’
[69]
[103]
Knipe testified that he retired as Assistant Commissioner (the
equivalent of the current major-general) of the Serious and
Violent
Crime Division after 37 years of service in the SAPS. He received
several awards for outstanding service during his career.
[104]
In July/August 1997 he was instructed by Fivaz to investigate
allegations of possible criminal activities by the plaintiff
and
members of PITU. He was to report to Fivaz and authorised to select
the members of his team. He selected Rossouw, Captains
Cooper and
Harri, and Brigadier Van Dyk, who was one of the legal officers
attached to the Provincial Head Office in Cape Town.
[105]
Fivaz told him that a meeting had been held with the plaintiff, Mbeki
and Viljoen and that the plaintiff, who was then under
investigation
by members of the Evaluation Unit in Pretoria, objected to the
‘
methodology’
of that
investigation. Knipe’s name had been mentioned and the
plaintiff apparently agreed to his appointment:
[70]
‘
And was this a
run-of-the-mill type investigation that you were about to conduct?
--- Most decidedly not, M’Lady.
Why do you say that?
--- The mandate which had been given to Director Lincoln had been
given by no lesser person than the President
of this country. The
mandate was given on a handwritten note addressed to Commissioner
Fivaz by the President. The unit worked
under the title of the
Presidential Unit.
What was the
significance of that in terms of the investigation you conducted? ---
…I approached it as any other criminal
investigation, but it
was obvious to me that this was a prestige unit.
The unit you were
investigating? --- Yes, that Director Lincoln must have been held in
high esteem by no lesser person than the
President of the country.’
[106]
Knipe had a meeting with the Evaluation Unit’s investigating
team, Bouwer and Senekal, at which he was briefed and handed
Smith’s
statement. Using this statement as a ‘
base document’
he and his team commenced their investigation in late July/early
August 1997. He was also subsequently provided with the Information

Note dated 19 August 1997 prepared by Bouwer and Senekal but
testified that the information contained therein had been conveyed
to
him at their meeting.
[107]
Adv Andre Bouwer of the prosecuting authority became actively
involved in the investigation at a very early stage (that Adv
Bouwer
and Superintendent Bouwer of the Evaluation Unit have the same
surname is coincidental):
[71]
‘
It was almost a
Scorpion-type investigation, where the prosecutor played a very
prominent and leading role in the progress of the
investigation. We
probably met with the advocate once a week, when we would discuss
what had happened that week, show what statements
we had obtained,
received guidance and advice, and proceed. He also had a reporting
line directly to the Director of Public Prosecutions,
who at the time
was Adv Kahn, and regular reports were made to the advocate on the
…progress of our investigation.’
[108]
Not all of the allegations contained in the Information Note were
investigated by Knipe and his team, because they fell outside
his
mandate, which was to investigate possible criminal activities. Those
they did investigate included the Oelofse attempted murder
docket
which the prosecuting authority later declined to prosecute, the
Mangiagalli affair, the allegations of serious irregularities
and
financial mismanagement of the unit, and the charges of drunken
driving and leaving the scene of an accident.
[109]
As regards the latter charges, Knipe assigned Rossouw to take over
the investigation from Benn who was a PITU member serving
under the
plaintiff at the time. By that stage a docket had already been open
for several months but after Benn took it over from
Bock, ostensibly
on the plaintiff’s instructions, no apparent progress had been
made.
[110]
During the course of the investigation a range of dockets were opened
and investigated but, almost from the outset, under
the supervision
of the prosecuting authority. If a docket was opened and the
prosecutor was of the opinion that it appeared to
be of an
administrative nature, he would decline to prosecute and refer it to
Brigadier Van Vuuren of the SAPS Disciplinary Unit
in Pretoria for
decision. As far as Knipe knew departmental steps were not ultimately
taken against the plaintiff because following
his conviction and
sentence in the regional court he was dismissed from the police
service. (He was reinstated following his successful
appeal).
[111]
The investigation culminated in the plaintiff’s arrest on 18
February 1998. During this period Knipe was promoted to
National Head
of Serious and Violent Crime in Pretoria. To the extent that anything
further was required by the prosecutor this
was delegated to Rossouw
although he and Knipe remained in contact.
[112]
Knipe denied having any personal agenda against the plaintiff, who
had never complained about the manner in which he conducted
the
investigation. It was only Smith who complained of rudeness towards
him. Knipe was asked to describe his relationship with
Smith:
[72]
‘…
How was
your relationship with him at the beginning? --- Rocky.
Rocky. Why do you say
that? --- I don’t know if I believed Smith at the start. Some
of the stories in that long affidavit
seemed so incredulous. I was
also concerned about the obvious breakdown between him and his
commander, and I wanted to make sure
that he was telling us the
truth, that it
–
that he was
not being vindictive against his former commanding officer. But as I
delved into his statements, I was forced to change
my mind and
realise that he was not taking me for a ride…I can remember
telling Rossouw that we must tread very carefully,
and before we open
any case docket or take any action we must get corroboration…I
was investigating a high-ranking police
officer, a police officer who
had been instructed by the President of this country to lead an
investigation. I was aware that there
was animus between the two
parties, and did not want to prejudice Director Lincoln if there was
a vendetta against him. But as
I said, M’Lady, as Smith stood
up to interrogation and we found corroboration, I changed my mind
towards him.’
[113]
Knipe candidly conceded that he had sworn and been abusive to Smith,
explaining that it was because he wanted to get to the
truth and to
make sure that Smith was not lying. He conceded that he had been
openly critical of covert and intelligence operations,
going back to
the early days of his police career:
[73]
‘
I think what
was proven, with great respect, in the TRC hearings
[about]
so-
called intelligence-driven or covert operations, on that basis, I
don’t think it’s anything to be proud of. I believe
that,
even if it’s a covert operation, it must be in terms of the
law.’
[114]
Knipe confirmed that, following the Khoisan article in the Mail &
Guardian, he was investigated at the highest level.
The investigation
was assigned to the SAPS principal legal officer, Dr Jacobs, and he
was subsequently informed that no charges
would be brought against
him, nor would any departmental steps be taken because there was no
substance to the allegation that he
had threatened to topple the ANC
government. He also denied ever having threatened to do so. This had
moreover never been raised
with him during his cross-examination in
the regional court trial.
[115]
Knipe denied putting pressure on Smith to lie:
[74]
‘
Never. Never,
ever. It’s actually nonsensical, with great respect. I was
charged to investigate against Director Lincoln.
To get the evidence
against Director Lincoln, I had to find evidence that would link him
to a crime. Smith was linking him to crime…so
it would have
gone against the very purpose of what I had been instructed to do.’
[116]
Knipe denied that he pressurised other witnesses to provide false
statements or to give false testimony against the plaintiff.
Other
PITU members were also potential suspects, including Smith and Benn,
who testified as section 204 witnesses:
[75]
‘
We investigated
across the board. If an allegation was made and it involved three
persons, then the evidence would have been solicited
against the
three persons.
That decision to prosecute obviously did not
rest with us, but we did
not shield anyone from
any responsibility which they might have had in any
allegation of crimi
nality.’
[emphasis supplied]
[117]
He agreed with Palazzolo’s evidence in the regional court trial
that he had attempted on many occasions to obtain a
statement from
Palazzolo without success.
[118]
In respect of those dockets on which the prosecuting authority
decided to prosecute, as an investigator of 30 years’

experience at the time, Knipe was satisfied that they showed
reasonable and probable cause for prosecution.
[119]
Knipe was not aware of any complaint having been made by the
plaintiff about the manner in which Rossouw conducted the
investigation.
He described Club 35 as a ‘
braaivleis and
brandy and coke club’
. He believed that Rossouw was
chairman of the club at a stage. Knipe himself was never a member.
[120]
Knipe contextualised the “threats” of criminal
prosecution made to members of PITU if they failed to co-operate:
[76]
‘
Did you
threaten any members of the PITU and did you say to any of them that
they might be charged? --- It is possible and probably
that I would
have cautioned them that they must be careful what they say, they
must be truthful, I mean there were incidents where
I think Smith
broke the law…I think that was fair on my part to do that, to
make them aware of that possibility…’
[121]
Knipe openly conceded that he believed Operation Intrigue to be a
farce because the evidence he obtained during his investigation

indicated that the unit, and in particular the plaintiff, were trying
to protect Palazzolo rather than investigate him as they
were
mandated to do. He had also testified to this effect at the Palazzolo
hearing in Cape Town. He emphatically denied any improper
involvement
in the Gugulethu Seven or the Community House bombing and had not
even been called to testify at the TRC in relation
to the latter.
[122]
In response to the plaintiff’s complaints to others of
interference with the unit, Knipe testified that none had been

levelled against him. He was made aware of the existence of these
complaints during his investigation, but not tasked to investigate

them himself.
[123]
About 200 witnesses were interviewed by Knipe and/or members of his
team during their investigation. He was referred to the
transcript of
an interview held with the plaintiff on 14 January 1998 (just over a
month before his arrest).
[77]
He was criticised for having waited until then to provide the
plaintiff with the opportunity to ‘
prove
his innocence’
.
[78]
He responded that he had needed to obtain corroboration before
addressing the primary suspect in the investigation.
[124]
Knipe agreed that when appointed by Fivaz he was instructed, as part
of his mandate, to determine the veracity of the allegations
made by
Smith. Knipe was referred to the plaintiff’s letter of
complaint to Mbeki and Mufamadi dated 15 July 1997 which primarily

targeted Smith.
[79]
Given that
Smith’s statement was made a day later, Knipe was asked whether
he had interrogated him on the contents of that
letter. Knipe replied
that he was not provided with the letter and to the best of his
recollection, it only surfaced on the day
of the plaintiff’s
arrest on 18 February 1998 during a search of PITU’s premises.
However allegations of a similar
nature were made by others against
Smith, and duly investigated, in the months leading up to the
plaintiff’s arrest.
[125]
Knipe was taken to task about why he continued with the investigation
after Bosman’s letter of 25 November 1997 in which,
so the
plaintiff’s counsel contended, PITU was given the all
clear:
[80]
‘
Yet you
proceeded with the investigation for the safe house which Bosman now
said no problem, with the S&T, Bosman said it’s
no problem,
with the claims by Mr Lincoln, Bosman said no problems, you persisted
with those charges. --- M’Lady, with great
respect many of the
charges were withdrawn.
The charges that were proceeded
with were proceeded with by the
prosecutor who
would’ve had this documentation
, all the
documentation was handed in by the defence, …and I’m not
even sure if all of these matters…were subjects
of
the…eventual charge sheet…
…
It’s
very difficult, M’Lady, we had several dockets and as evidence
came in to substantiate the complaint or to provide
evidence that the
complaint did not have substance, this was the basis on which cases
were nollied or decided to prosecute on…as
I stand here I
cannot even remember all the charges that were brought in against
Director Lincoln, there were so many and even
more were nollied
[i.e.
the prosecuting authority declined to prosecute and issued
certificates of
nolle prosequi
].’
[emphasis supplied]
[126]
Knipe also testified that statements had been obtained from both
Bosman and Commissioner Craemer (the Divisional Commissioner
for
Financial Services at SAPS head office) long before the decision to
prosecute was made. It is common cause that Bosman and
Craemer both
testified for the state in the regional court trial. Knipe testified
that:
[81]
‘
Our
modus operandi…was that all people that…could
provide evidential
value whether for or against
the investigation…we obtained and placed
before
the relevant prosecutor for a d
ecision, so we obtained
statements from all those parties, we obtained a statement from the
Minister, we tried to be as thorough
as we could…’
[emphasis supplied]
[127]
Regarding the plaintiff’s allegations of interference with the
unit and its activities, Knipe responded:
[82]
‘
I think I was
[appointed investigator]
for the very reason that the National
Commissioner would’ve realised that I was not one of those that
made any complaints
to him, and that I was neutral, and as I
understand it when the conversation took place with the Deputy
Commissioner it was suggested
that because of my neutrality I would
be the person that should investigate, that’s my understanding,
I wasn’t there.’
[128]
Knipe was referred to several documents which were handed in as
exhibits during the regional court trial and which, on the
face of
it, appeared to be exculpatory of the plaintiff. The difficulty with
this line of questioning – and it was raised
with counsel for
the plaintiff – was that selected portions of the available
evidence were put to Knipe, roughly 20 years
after his investigation,
in an apparent attempt to show the absence of reasonable and probable
cause to pursue the investigation.
As correctly submitted by counsel
for the second defendant, in order for the court to evaluate whether
there was an absence of
reasonable and probable cause, Knipe should
have been presented with the full contents of the dockets placed
before the prosecuting
authority and cross-examined on those
contents. Despite being afforded this opportunity the plaintiff’s
counsel did not do
so.
[83]
[129]
In re-examination Knipe was again referred to the transcript of his
interview with the plaintiff in January 1998 and in particular
the
following passage:
[84]
‘…
my
whole thing, Director Lincoln is to be as fair in terms of law with
you as possible, and I think, if you have any complaints
about that,
that you must level with me. --- For sure, look I don’t have
any complaints, I think from day one, I don’t
have complaints
about the way you’ve done the investigation. I have often said
in this office that…from your side,
I don’t think I’ve
ever had any problem. I said to Comm. Fivaz, and I said it in front
of the Deputy President, Piet
Viljoen, Piet and myself were at that
same meeting, I said I have no problem at all with you investigating
this case.’
[130]
Knipe was also again referred to the plaintiff’s letter to
Mbeki and Mufamadi dated 15 July 1997
[85]
where, after requesting the urgent meeting with them, the plaintiff
continued:
‘
If the above
mentioned meeting is agreed to I would also like to discuss with you
the investigations into this office by the office
of the National
Commissioner.’
[131]
Knipe agreed that if this was accurate there were already
investigations by the office of the National Commissioner underway
on
15 July 1997, but fairly stated that they might have related to
matters other than irregularities within PITU. It is noted however

that what was contained in the plaintiff’s letter is consistent
with what Fivaz told Knipe when appointing him to lead the
task
team.
[86]
His evidence was
further that the new mandate issued by Fivaz on 29 August 1997 had no
bearing on his investigation, given that
it was focused on PITU’s
activities prior to that mandate being issued. Knipe was never
informed by Fivaz or anyone else
that, given the new mandate, he
should halt his investigation.
[132]
Senekal now holds the rank of Brigadier in the SAPS and is attached
to its Complaints Management Coordination Section in the
Management
Intervention Division at Pretoria Head Office. He has almost 37
years’ experience.
[133]
He testified that during 1997 he was attached to both the National
Inspectorate and the SAPS Complaints Investigation Unit.
He was the
co- author with Bouwer of the Information Note dated 19 August
1997.
[87]
On 3 July 1997 he
received an instruction from Fivaz to investigate PITU’s
request for additional resources. This was not
unusual because
requests of this nature fell within the general mandate of the unit.
Senekal was referred to a statement he made
to Rossouw on 10 February
2000
[88]
from which the
following appears.
[134]
On 6 July 1997 Senekal and Bouwer travelled to Cape Town to start
their investigation. On 7 July 1997 they met with Provincial

Commissioner Wessels for a briefing. On 10 July 1997 they met with
Smith and a Superintendent Marais. Smith made a number of allegations

about irregularities within PITU for which he maintained the
plaintiff was responsible. Senekal advised Smith to collate any
available
documents to support his allegations and arranged to meet
him again on 14 July 1997. When they met that day Senekal began to
take
Smith’s statement which ultimately ran to about 70
handwritten pages and was only finalised on 16 July 1997.
[135]
Smith volunteered all of the information in that statement without
any prompting on Senekal’s part. Senekal’s
role was to
formulate the statement, as far as possible, in chronological order.
Thereafter he and Smith had sporadic telephonic
contact once he
returned to Pretoria.
[136]
On 31 July 1997 Senekal returned to Cape Town. He had a further
meeting with Smith on 7 August 1997. Smith was accompanied
by
Oelofse. Both gave statements about the shot allegedly fired by the
plaintiff. On the same day a docket was opened on a charge
of
attempted murder. Knipe had no involvement at that stage.
[137]
This was the sum total of Senekal’s interaction with Smith.
According to Senekal it was Smith who had made contact with
him:
[89]
‘
Did you attempt
to influence Mr Smith in any way in this process? --- Not at all
M’Lady. As I said, he volunteered the information.
I did not
contact him. He was the one that contacted me. And I did not. No,
M’Lady.
Did you, Mr Senekal,
have any ulterior motive in this process and your interaction with Mr
Smith? --- Not at all, M’Lady.
And was your conduct
in this process in any way motivated by malice in respect of Mr
Lincoln? --- Not at all…I received an
instruction that I had
to go and look at the resources that were requested and that’s
what I did. The mere fact that Inspector
Smith approached me in the
process, I could not ignore that and I obviously had to take that
matter further and take an affidavit
from him with regard to the
allegations. But that is as far as it went…’
[138]
Senekal had previously visited Cape Town in May/June 1997 to
investigate a complaint received from the office of the Minister
of
Safety and Security in relation to the Mangiagalli affair. As far as
he could recall he met with the plaintiff during the course
of that
investigation, given that PITU was involved. Earlier investigations
by Senekal did not involve any complaints against the
plaintiff or
PITU.
[139]
The Information Note was the ‘
final product’
of
Senekal’s investigation. The reference therein to ‘
possible
maladministration’
was a response to a specific request
made by Fivaz to report on PITU’s management so that Fivaz, as
accounting officer for
the SAPS, could make an informed decision on
whether additional resources for the unit were warranted. The fruits
of Senekal’s
investigation into possible maladministration
included references to ‘
audit of
claims’
,
which were the findings of the SAPS head office Finance Division,
including the rental of a safe house occupied by the plaintiff
and
his family and personal claims submitted by the plaintiff for a daily
subsistence allowance. Others included Senekal’s
reasoning and
conclusions in respect of the misuse of government vehicles and
mismanagement of projects.
[140]
Senekal was taken through the information he had gathered as well as
his recommendations on possible criminal and/or departmental

investigations into the plaintiff and PITU. One of his
recommendations was that Knipe be appointed to ensure the effective
co-ordination
and speedy finalisation of these investigations. He
contextualised this as follows:
[90]
‘…
at the
time I know that Director Knipe was the Commander of the Serious and
Violent Crimes Unit in the Western Cape and when this
report was
compiled he had already, according to my knowledge, been instructed
by the National Commissioner to ensure that all
the criminal…and
departmental investigations that had surfaced pertaining to the
[PITU]
be investigated…’
[141]
Senekal regarded the allegations of PITU interference in
investigations of other units as a cause for concern. Although PITU

had a mandate, it was broad, with no clear parameters, and when PITU
members instructed other units to hand over their dockets
this caused
conflict. Senekal’s view was that PITU appeared to be occupying
itself with matters unrelated to its mandate
without having the
necessary capabilities, expertise or any particular success, whereas
there were already well-established specialist
units which were
perfectly qualified to continue investigating these matters.
[142]
Senekal also identified concerns with the reporting line. Fivaz told
him that he was being side-lined by the plaintiff who
insisted on
reporting only to Mandela or Mbeki.
[143]
After producing the Information Note he had no further involvement
other than to give requested information and documentation
to Rossouw
during the latter’s investigation. Senekal did not testify in
the regional court trial. He had not consulted Lincoln
during the
course of his own investigation:
[91]
‘…
you
deal with the fact that as of the date of this report, 19 August,
Director Lincoln has not yet been consulted. --- That is correct,

M’Lady, I did not consult or we did not consult Director
Lincoln on this. We had finalised what we needed to finalise and
it
was left then in the hands of the senior management of the South
African Police Service to address the matter further in whichever
way
they would deem fit.’
[144]
During cross-examination Senekal testified that he was not informed
about the plaintiff’s latest complaints of interference
in PITU
before commencing his investigation. Nor was he aware that Fivaz had
taken umbrage at the tone and content of the plaintiff’s
letter
of 5 October 1997 in response to the Mail & Guardian article.
[145]
As far as Senekal could recall he and Bouwer visited PITU’s
premises in July 1997 and met with Benn and possibly Van
der
Westhuizen. They also visited the other units referred to in the
Information Note, but he could no longer recall who he spoke
to and
what was conveyed other than what was contained in that Note. He had
not mentioned Benn, Van der Westhuizen, or the other
units in his
later statement to Rossouw:
[92]
‘…
I’m
not sure why he requested me to make an affidavit, but as I said on
the content of the affidavit that I made, I deduct
that it was for
some kind of investigation that was being conducted in relation to
Inspector Smith and the use of state vehicles,
but I do not know
anything further. I do not know if it was part of a case docket,
criminal, departmental investigation, I’ve
got no idea…
That was three years
after I’d submitted the Information Note…it is possible,
most likely, that Senior Superintendent
Rossouw would have said to me
the reason why he needed…a specific statement, but I cannot
recall the reason or what he said,
if he had said that.’
[146]
Senekal agreed that it was protocol when evaluating or investigating
a unit to first inform the unit commander. When asked
why the PITU
investigation was an exception, he replied:
[93]
‘…
I
cannot answer that. I cannot recall whether we did in fact see
Director Lincoln when we came down on that occasion, whether he
was
available at the time, I cannot recall that.’
[147]
At the time of receiving his instruction from Fivaz, Smith was not
mentioned and Senekal had no knowledge of his existence.
The first
time he got to know about Smith was when the latter contacted him
while in Cape Town. He had no idea how Smith knew to
contact him.
Although it was not required when conducting an evaluation or
investigation to take statements from each individual
interviewed, he
took a statement from Smith for the following reason:
[94]
‘…
the
information that was provided by Smith contained allegations of not
only misconduct, but also criminality…and therefore
it
would’ve been essential for me to obtain an affidavit from him
in order to ensure that those allegations are investigated
properly
by the correct authorities…
Because I put it to
you that was exactly not your mandate, to investigate criminality or
departmental misconduct, you had to refer
that to somebody else, that
was not your mandate why you were in Cape Town? --- M’Lady,
that’s one hundred percent
correct, it was not my mandate, but
as I explained earlier on it came across my path, I could not ignore
it and it formed an integral
part of what I had been tasked to do and
I had an obligation to report that to the National Commissioner as
well, therefore I combined
that with the initial instruction for
reporting purposes.’
[148]
Smith made Senekal aware of the breakdown in his relationship with
the plaintiff. He was not privy to the plaintiff’s
letter to
Mbeki and Mufamadi of 15 July 1997 in which the plaintiff reported
his serious concerns about Smith. Nor was he made
aware of any
allegations of this nature during his investigation. According to
Senekal his primary role was to gather information,
not test its
veracity. Investigating the truth of the information obtained would
be the responsibility of other SAPS authorities.
Senekal conceded
that he had no personal knowledge of the ambit of PITU’s
mandate at the time he conducted his investigation.
He conceded that
he could not dispute the plaintiff’s version that dockets taken
over from other units formed part of PITU’s
broad mandate.
[149]
Senekal was referred to the letter from Commissioner Bosman dated 25
November 1997 in which he approved disputed PITU financial
claims.
Senekal responded that he had never seen this letter (given his
unchallenged evidence that his mandate was complete once
he submitted
the Information Note on 19 August 1997 this is understandable). It
was demonstrated that Senekal had proceeded on
the wrong premise in
respect of some of PITU’s expenditure when making his
recommendations in the Information Note.
[150]
Senekal was cross-examined at some length about his opinions and
recommendations regarding the Mangiagalli affair. Given that
Senekal
had no involvement in the formal investigation after he submitted the
Information Note of 19 August 1997, this was not
helpful. He was also
referred to the previous investigation he had conducted on
instructions of Fivaz. It emerged that this related
to the
plaintiff’s complaints of interference in PITU by other units
during the course of its so-called Nothnagel Investigation,
and
resulted in Senekal having recommended that PITU be permitted to
continue without interference.
[151]
Senekal contextualised the weight to be attached to his
recommendations as follows:
[95]
‘…
it’s
got to be borne in mind that these are only recommendations from my
side, they don’t have to be taken note of,
they don’t
have to be considered, they don’t have to be implemented,
that’s at the discretion of the National
Commissioner…’
[152]
Adv Andre Bouwer (who for convenience I will refer to as AB) was the
prosecutor in the regional court trial, and the member
of the
Attorney- General’s office who directed the Knipe
investigation. He in turn reported to Deputy Attorney-General Niehaus

and Attorney-General Frank Kahn.
[153]
AB testified that the Attorney-General’s office became involved
in the investigation at a very early stage, given the
plaintiff’s
high profile and the fact that PITU had been established on
instructions of the President. It was thus necessary
for the
investigators and prosecuting authority to be extra vigilant in
ensuring that sufficient grounds existed for any subsequent

prosecution. Smith’s statement formed the basis of the
investigation.
[154]
AB explained his
modus
operandi
and
the extent of Knipe and Rossouw’s involvement as follows:
[96]
‘
We started
investigating possible defences and most of what I wanted
investigated was even direct instructions to their investigating
team
whom at that stage I met regularly. Knipe I met in the beginning,
Knipe was the boss and then he left and I probably saw him
three
times after that in the year and a half until we went to trial…Piet
Rossouw was the Investigating Officer, I met him
there, I came…to
know him very well because we spent a lot of time together, it was a
difficult case.
And the matters that
were referred to trial, the dockets that were referred to trial once
they had been investigated, what do you
say about whether there was
reasonable and probable cause to proceed to trial in respect of those
matters? ---
Every single docket that we took to trial was
signed off by myself where I said this case is a case, it
can go to trial, when I
finished the
instructions to investigate it was presented to Nollie Niehaus, it
was after that presented and argued to Frank Kahn
and
Mr Kahn with respect is not an easy man, he would question you and he
would give you scenarios and what about this and what
about that and
it is my evidence that we had a
case
when we went to trial on each and every c
ount.’
[emphasis supplied]
[155]
It was AB’s evidence that at no stage in his interaction with
the investigators, including Knipe and Rossouw, did he
detect that
they were in any way motivated or driven by malice or some other
ulterior motive. In his opinion Knipe treated the
plaintiff
professionally. As far as Rossouw was concerned:
[97]
‘
Mr Rossouw
followed instructions and he investigated the Smith affidavit, he
followed Director Knipe’s instructions and my
own and then he
still didn’t bring me what I wanted and then eventually Mr Kahn
flew me up to go and consult with all the
Generals for a week…’
[156]
AB readily conceded that some witnesses were placed under pressure to
tell the truth, including Palazzolo and Benn. He confirmed
that it
was he (and no- one else) who caused Stofberg to change his
statement. Stofberg ultimately testified on behalf of the plaintiff

in the regional court trial. Of the 30 counts on which the plaintiff
was acquitted in the regional court, 20 related to S&T
claims
‘
which could’ve been and should maybe have been one
charge’.
[157]
As far as the “old guard versus new guard” allegations
were concerned, the following passage in AB’s evidence
is
relevant:
[98]
‘
The court has
heard a good deal of evidence…with the theme relating to old
guard and new guard and a suggestion that there
was some kind of
ulterior purpose in the investigation and the prosecution and that
there was malice involved in the process. ---
That was a topic
throughout, from the beginning of the trial, it was there, it was out
in the open, everybody was shouting it…
Yes. --- Didn’t
make it easier for us to make a decision, I knew that. Yes. --- I
don’t regard Leonard Knipe as old
guard, I regard him as an
Engelsman, I don’t think he was really accepted in the old
guard, but I was aware of this and that made us more careful and
if…I
say again if anybody knows Frank Kahn they will know that he can see
danger coming a mile and he made sure, we made
sure that we had a
case and if we felt we didn’t, we had no case, we would have
withdrawn it right there and then.
Which is what happened
in respect of certain of the dockets? --- Ja. It is my evidence that
we had a proper case on every single
count taken to court.’
[158]
It was also his evidence that the defence were afforded an
opportunity to make representations on the plaintiff’s behalf

before the regional court trial commenced. They did not want to make
representations to Attorney-General Kahn and it was then agreed
that
they be made to the National Director of Public Prosecutions, who at
the time was Mr Bulelani Ngcuka. The state and defence
were tasked to
provide written heads of argument which they had to present
personally to Ngcuka. The defence representations included

allegations that the plaintiff was being framed
inter alia
by
the old guard. Having heard them and considered their submissions, it
was Mr Ngcuka who issued the final instruction to proceed
with the
plaintiff’s prosecution.
[159]
Reference was made during the regional court trial to Club 35. AB was
asked whether he made enquiries:
[99]
‘
Did you ever
ascertain what Club 35 was? --- I did, I made enquiries and my
investigating officer Senior Superintendent Rossouw
was in fact the
chairman of Club 35.
And what was Club 35?
--- …what I established is that it is detectives…in the
Cape, Woodstock, Cape Town, Table View,
they used to meet once a
month or once every two months either at Table View or at
Woodstock…it was administered by two
secretaries who would
gather money to buy a kilogram of meat and then…the detectives
would meet and they would braai and
they would drink and the most
senior guy in this Club was…Rossouw…there was one other
colonel there, I can’t
remember his name, but an unknown
person, there was nobody in Club 35 with the remotest kind of
influence in any way. The majority
of the people were lower ranks, it
was a braaivleis club for detectives and it was also…I
established it was an open club
and it was not only old guard people
coming there…’
[160]
In the early stages of the investigation there was a definite sense
that PITU members were closing ranks around the plaintiff.
AB
described the lengths he went to in order to obtain the truth from
these members, including Van der Westhuizen and Benn. It
is clear
from his evidence that it was he who drove this process and that the
police investigators, particularly Rossouw, acted
mostly on his
instructions. The same applied to his interactions with Smith, who AB
testified he consulted about 20 times, as well
as April, Palazzolo,
Gillot (who threw a heavy ashtray at him out of anger) and Williams.
[161]
During cross-examination he explained that it was Adv Jasper Tredoux
of the Attorney-General’s office who initially
dealt with the
Mangiagalli investigation. AB could not recall having interviewed
anyone with Knipe although he conceded that he
may have forgotten. He
interviewed a number of witnesses with Rossouw, ones who he described
as:
[100]
‘…
the
difficult cases…people who had problems in their statements
which I would see is a problem, which I had to clarify before
I
brought them to court.’
[162]
He conceded that the record of proceedings in the regional court
trial indicated that in the very early stages another prosecutor,
Mr
Kobus Van Dyk, appeared for the state in a postponement, but denied
the suggestion that he had therefore only become involved
in the
investigation and prosecution thereafter. It is to be noted that it
was not suggested to Knipe when he testified that Van
Dyk was
involved in the investigation. AB’s evidence was also that Van
Dyk was a regional court prosecutor who was not attached
to the
Attorney-General’s office at the time.
[163]
AB was taken through all of the witnesses he interviewed, including
very senior SAPS members. The following passage in his

cross-examination is relevant:
[101]
‘
Now your
evidence in chief was that in all those, or after your consultations,
that in all those dockets
[i.e. on which prosecution followed]
you found there to be reasonable and probable cause, correct? ---
That is correct, M’Lady.
And that was given
after you…consulted or interviewed all these witnesses,
including the generals. ---
M’Lady, on what we
charged Mr Lincoln
for, me, Nollie Niehaus and
Frank Kahn were of the opinion that we had a
more
than reasonable chance, that we had good dockets to take to court
.
And please the feeling that I got from the top, is we would have
preferred not to
prosecute, it would have been easier for us
not to prosecute, because of the names involved, because of the high
profile, because
of the allegations of old guard, new guard, nobody
wants to fight for the old guard, not in 1998.
So if
we could withdraw, we would have. On the evidence, we could
n
ot.
Why didn’t you,
if that was the stance, why did you and your superiors not rather
refer all these matters to disciplinary
investigations rather than
criminal investigations? --- Because in our view, there was nothing
disciplinary about this, absolutely
nothing.
And just to
back up my point,
M’Lady, Mr Frank Kahn
didn’t want to make the final call, that’s why he
referred it to Bulelani Ngcuka, who made the final call,
and Bulelani Ngcuka is
not old guard
…we
were extremely more comfortable after it was referred to Mr Ngcuka
for representations…’
[emphasis supplied]
[164]
He was also taken at some length through the evidence adduced during
the regional court trial. It is not necessary to refer
to this
evidence, given his unchallenged testimony about the decision to
prosecute, his role in the investigation, and the plaintiff
having
withdrawn his claim against the first defendant.
[165]
AB corroborated Knipe’s testimony that the investigation was
very much a Scorpions-type one where the Attorney-General’s

office actively directed the process. When referred to the comment
made by the appeal court in setting aside the plaintiff’s

convictions that ‘
the
entire trial consisted of intrigue, name- dropping and very little
else’
he
responded:
[102]
‘
Well, is she
saying the state name-dropped because we didn’t. We had to
respond to all the allegations. I had to walk to Parliament
to
summons
Mr
Sidney Mufamadi. That’s not easy. It’s not my normal
day-to-day activities and I found that stressful. So I would
have
preferred to keep the politics and the name-dropping out of it, but
it’s not something that the state did. It’s
something
that the defence did. And the way in which the state case was
attacked from the beginning, we just knew that we had to
make sure –
we had to make sure before we charged. And that was why it was
escalated to the level where we had to have sign-off
of Mr Kahn,
which is not the norm…’
[103]
[166]
It is common cause that AB did not represent the state when the
appeal was heard, having already left the Attorney-General’s

office sometime earlier. When reminded that the plaintiff had
withdrawn his claim against the first defendant, AB replied:
[104]
‘
If the police
did not do their work properly, then it’s my fault, because my
crew managed them from day one.’
[167]
Fivaz, previously the National Commissioner of the SAPS, was
appointed by Mandela to this position in January 1995 and retired

from service at the end of December 1999. He testified that on 11
June 1996 he met personally with Mandela at the latter’s

request. He was handed a sealed envelope containing a handwritten
note. Mandela explained that the note contained a personal request
to
appoint a special investigation unit to investigate specific
activities of Palazzolo, who was alleged to have corrupt
relationships
with Commissioner Venter and Minister Jordan. Mandela
asked Fivaz to appoint the plaintiff as head of the unit, and to
ensure that
it was provided with the necessary equipment.
[168]
With reference to the line of reporting, Fivaz testified that:
[105]
‘
Then the
President…said that he would like me to report back
occasionally to him about the progress of the unit, because
he is
expecting that the unit report operationally and otherwise direct to
me as the Commissioner, and I must do the necessary
to get that
operationalised.’
[169]
Fivaz identified the handwritten note as the same document about
which the plaintiff had testified.
[106]
[170]
Fivaz had not personally met the plaintiff at that stage but arranged
an appointment with him for this purpose. He told the
plaintiff that
he would make arrangements with the Chief Financial Officer of the
police service, Craemer, to take responsibility
for the financing and
setting up of the unit out of the police service’s open budget
but on a ‘
need to know’
basis, given the serious
allegations about Venter who was the head of Organised Crime and had
direct access to the ‘
secret account’
. Fivaz
realised that the list of requirements contained in Mandela’s
handwritten note would be insufficient for the proper
operation of
the unit. He thus instructed Craemer to make sure that the unit had
whatever they reasonably required. Craemer was
to deal with this
personally or with the assistance of only one other person from his
division (it was Bosman who was later tasked
to assist Craemer).
[171]
Fivaz was referred to the letter dated 18 June 1996 signed by Grové
which recorded that the unit would report directly
to Mandela and
Fivaz. His evidence was as follows:
[107]
‘
Now the
document was obviously completed at the time after I’ve spoken
to the person that signed the document, that was a
General Grové,
he was the National Head of the Detective Service at that time…all
the people mentioned in the letter
of the late President Mandela,
that should be transferred to the new unit, except for Lincoln, were
members of the detective branch
reporting to Grové. Now my
discussion with Grové was, make sure these people are released
from where they are and
transferred to this unit. And that was where
this letter emanated from. But the fact is, M’Lady, there was
no arrangement
between President Mandela and myself, that President
Mandela and myself will be the command structure of this unit, it was
never
the arrangement. It was clearly said by the late President
Mandela: the people must report to you. And I think he was well aware

of the fact at that time, that is why I want to emphasise it, M’Lady,
I think he was well aware of the fact that he cannot
be, in terms of
law, the operational commander of a police unit…because the
Constitution is very clear, who is the operational
commander of the
police service, and the Police Act is very clear on that.’
[172]
He was referred to the “new mandate” letter he wrote on
29 August 1997, just over a year after the unit’s

establishment. He was asked to explain how this letter came
about:
[108]
‘
M’Lady,
the period preceding this letter, I experienced numerous hiccups
relating to reporting of the unit. I think in the
files of the police
service, there will be numerous correspondence where there is a
tussle, that Director Lincoln, you know, attempted
to create the
impression that he is not reporting to police structures, he is
reporting to the President. Then there will be indications
where I am
saying but it can’t be, it can’t work like that in
practice.
So there were continuous talks between myself and
Director Lincoln relating to the reporting line. It later on seemed
to me that
he was deliberately trying to create a situation where he
was not reporting to the Commissioner of Police, as arranged with the

late President Mandela, that he would like to have his own reporting
line. And during that period, exactly what I was afraid for,

happened. I received – I started to receive continuous
complaints from outside my office, even from the Attorney-General
at
that time, Mr Frank Kahn here in Cape Town, saying, you know, this
unit is a rogue unit, they are doing what they want, they
are booking
out sentenced prisoners on false statements, and from the Provincial
Commissioner here, saying, you know, the unit
is doing all sorts of
funny things, they are hiring houses, they are renting motorcars and
they just do what they want…so
that continuous complaints
coming to my office, eventually advise
[sic]
me as the
accounting officer of the police service, you have to do something,
now that all these issues are reported to you. And
I’m coming
out of a structure in the police service at that time, called
Efficiency Services. That’s a service that
is basically being
utilised to conduct efficiency services in the police service. So if
you are sceptical about something in the
police service, you’ll
send the unit, they do a typical organisation and work study
investigation and they report back on
the efficiency of the unit. So
I requested that specific unit to do a service level evaluation on
this unit. This is now before
this letter…’
[173]
Fivaz explained that an efficiency assessment included an
investigation into whether state resources were being efficiently

applied and whether the unit had sufficient resources to carry out
its responsibilities properly. In his words:
‘
so
it was not really a typical crime investigation, it’s more of
an effectiveness investigation or evaluation’.
[109]
[174]
Fivaz was referred to the Bouwer and Senekal Information Note of 19
August 1997 which in turn referred to an earlier Note
dated 25 July
1997. He could not recall whether he had sight of the previous
information note. However he could remember that the
investigators
gave oral feedback which was extremely negative about the activities
at the unit. Either Senekal or another investigator
were very
concerned about the fact that his accounting responsibility as
National Commissioner was at stake:
[110]
‘…
because
the unit is doing exactly what they want, they are not following
rules, they are hiring motorcars, they are living themselves,
with
their families, in safe houses, which is supposed to be for
informers. They are giving police motorcars to informers to roam
the
streets with and that type of thing that is totally, totally out of
line. That was reported to me.’
[175]
Fivaz summonsed the plaintiff to meet him and this resulted in the
Mbeki meeting at which the plaintiff, Fivaz and Viljoen
were also
present. At that meeting the plaintiff expressed concern that he was
being investigated and complained of attempts by
other SAPS members
to sabotage the unit. Fivaz in turn reported that he had received
very serious allegations against the plaintiff
and members of his
unit which would have to be investigated.
[176]
Fivaz testified that the following transpired at the meeting:
[111]
‘
I explained to
the President, that the first phase of the assessment was not an
investigation, it was to determine whether the unit
is effective or
not. And it came out that the unit is extremely ineffective, and
there are serious allegations of misconduct that
could also mean
criminal conduct. I explained…that I have no option as the
accounting officer of the police service, to
appoint an investigator
to investigate these allegations. At that stage, Lincoln objected,
saying he cannot trust anybody in the
police service. I responded, it
cannot be possible, somebody must be good in the police
service,
all 140 000 people can’t be corrupted. M’Lady, I must say
during that discussion the Deputy President made
the report: I agree
with the National Commissioner, these issues must be investigated…the
discussion started to revolve
around who can be trusted in the police
service for this investigation.
And eventually Mr Lincoln,
himself, brought up the name of…Director
Leonard
K
nipe. According to my knowledge the man was still based
here in Cape Town at that time, a seasoned detective that is really
highly
experienced in the investigation of crime and more
specifically sophisticated crime.
We decided there and
then…Knipe will be the investig
ator. We left the
meeting…with my commitment, that I will make sure that there
is not a witch- hunt against
[the plaintiff]
and his unit.
Furthermore, that I
will send out a circular, reconfirming the mandate of the unit, in
which I will specifically once again emphasise the line of
command and what should be done and what couldn’t be
done in terms of the
unit’s activities…’
[emphasis supplied]
[177]
Fivaz was aware of the existence of Smith’s affidavit but to
the best of his recollection had not seen it. He was aware
of Smith’s
allegations because Knipe conveyed those to him. His evidence was
further that after the “new mandate”
letter of 29 August
1997, the unit adhered to his instructions.
[178]
During cross-examination Fivaz was told of the plaintiff’s
understanding from Mandela that he, i.e. the plaintiff, would

effectively be in total control of the unit. He responded:
[112]
‘
The fact is, I
made it very clear to him in our first meeting the line of command,
according to the arrangement between myself and
President Mandela, is
myself. That, in itself, is extraordinary, because the National
Commissioner is not taking command of each
and every second unit, so
this
unit is a special arrangement between the President and
myself, you report to me. But as I have testified, M’Lady, it
came
out during the course of the process, there was a blunt refusal
from the side of Mr Lincoln to report to the Police for one or other

reason. He was of the opinion he can report to the President, which
was impossible, and I made that point to him on numerous occasions.

So that could not even have been a misunderstanding…’
[179]
Fivaz pointed out that Mandela’s instruction that the plaintiff
take over all responsibility for the unit as well as
management of
its entire operation, had nothing to do with the line of
reporting:
[113]
‘
The line of
reporting remains within the structures of the South African Police
Service, because you are utilising the resources
from the budget of
the South African Police Service. You can never argue a point saying
because the President set up or asked the
Commissioner to set up a
special unit, I am now totally outside the structures of the South
African Police Service. They got their
pay from the Police Service,
they got their resources from the Police Service, they got their
directions from the Police Service,
they got their authority from the
Police Service, from the Police Act, so they remained members of the
South African Police Service.’
[180]
It was suggested to Fivaz that one of the purposes of his letter of
29 August 1997 was to clear up any previous misunderstandings
about
the line of command. He denied this. Its purpose was to re-emphasise
what had previously been agreed.
[181]
It was also suggested to Fivaz that the plaintiff could not be blamed
for, at worst, misunderstanding the line of command,
given his
previous lack of training and experience. The plaintiff and others
had not had the advantage of attending management
courses before
being integrated into the SAPS. He replied:
[114]
‘
M’Lady,
they were not. They were integrated and later on trained. By that
time Director Lincoln already served for a couple
of months in the
Police Service. The fact is, a number of other people that were
integrated with Director Lincoln, like for instance
one of the people
involved here, Commissioner Tim Williams, they had the same
disadvantage, and they made it their specific responsibility
to know
what is permissible and what’s not in the new environment they
are working in. So I think it’s a lame excuse
to say, we were
not trained and therefore we were not aware of the fact that there is
a reporting line in the Police Service. That
can’t be. Being
old MK people, all those people were very disciplined in their
previous structures. They had their own line
of command, they had
their own commanders, they were well aware of what is going to happen
to you if you step out of the command
structure. It was not at all
tolerated. That’s also known. So being an ex-MK doesn’t
mean that you are totally without
any knowledge about what’s
going on in a paramilitary organisation like the Police Service. I
think the basic principles
remain the same.’
[182]
It was also his evidence that at the Mbeki meeting, while the
plaintiff complained about sabotage and interference, he was
not able
to provide any detail. This was when Fivaz made the point that, being
issues of an operational nature, the plaintiff should
have been
reporting to him rather than Mbeki. If there was substance to the
allegations he could have attended to them immediately.
It could not
be expected of Mbeki to have to investigate them. All present at the
meeting agreed. Fivaz conceded that it was possible
that Viljoen
suggested Knipe as investigator although his recollection was that
the plaintiff had done so. Fivaz himself never
suggested Knipe.
Whether it was the plaintiff, or Viljoen, or both, Fivaz was adamant
that the plaintiff was ‘
absolutely
satisfied’
with
Knipe being appointed. He too was comfortable with this:
[115]
‘
At that time I
was well aware of the ability of Knipe. He was a formidable
investigator, a very straightforward, very effective,
stainless type
of police officer, and I thought by myself that this is a good
proposal, because we will know at least one thing:
this will be
properly investigated.’
[183]
Fivaz pointed out that the only unresolved complaint in the
plaintiff’s letter of 15 October 1996 was a minor logistical

issue relating to a cell phone. In his view it could have been dealt
with differently by the plaintiff:
[116]
‘…
the
Department of Finance and Logistics in the police…uncovered a
cell phone has to be given back because it’s on the
inventory
of
[the plaintiff’s]
previous unit…so this type
of thing irritated me to say the least because we are making a
mountain out of a molehill, instead
of channelling certain things
directly to the right environment, we are creating a political cloud
over an issue that is supposed
to be dealt with administratively…we
[sic]
were creating unnecessary animosity and suspicion that
somebody was now in a sinister way trying to prevent the people to do
their
work. I was not in agreement with that.’
[184]
He was also referred to the plaintiff’s letter of complaint
dated 15 July 1997 addressed to Mbeki and Mufamadi. He had
no
recollection of this letter, or of its contents having been reported
to him.
[185]
Smith testified that he was seconded to PITU from the Aliens
Investigation Unit, a subcomponent of the Organised Crime Unit.
He
was medically discharged from service on 31 July 2000 after having
been diagnosed with post-traumatic stress disorder. At the
time he
held the rank of detective inspector.
[186]
It was he who volunteered the information contained in his lengthy
statement to Senekal about irregularities within PITU.
He had been
involved in investigating suspected Italian mafia fugitives in South
Africa since June 1995 while still stationed at
Organised Crime. This
included engagement with members of the Italian State Police.
Palazzolo featured from the early stages of
the investigation. The
plaintiff was identified as a person closely entrusted by Palazzolo.
Smith’s understanding at the
time was that the plaintiff was
thus perfectly placed to further the investigation. It was Smith who
introduced the plaintiff to
the Italian police while they were on a
visit to South Africa in about May 1996.
[187]
During their discussions the conclusion was reached that there was a
need to expedite further investigation, including the
close links
alleged to exist between Palazzolo and certain police and government
officials. During June 1996 the plaintiff instructed
Smith to compile
a report on the activities of Palazzolo and his associates identified
by the Italian police. According to Smith
the plaintiff told him to
keep himself available to attend a meeting which he was arranging
with Mufamadi for the purpose of setting
up a special investigation
unit to investigate the activities of Cosa Nostra in South Africa.
[188]
Smith recounted the two meetings that he attended thereafter, the
second with the plaintiff, Mbeki, Mufamadi, a Captain Nicholson
(also
of the Aliens Investigation Unit) and the Head of Intelligence, Mr
Joe Nlanhla. It was his evidence that it was Mbeki (not
Mandela) who
gave the go-ahead for PITU to be established. He explained PITU’s
mandate as follows:
[117]
‘
The mandate at
the time was to investigate the activities of Mr Palazzolo in
association with Cosa Nostra, and the police complicity,
and
complicity from allegations that were levelled against certain
government officials…’
[189]
Smith was tasked to be an intelligence operative, namely gathering of
information:
[118]
‘
The
objective…is to collate the intelligence to become a court-
driven product at the end of the day.’
Smith
recalled that information gathered was reduced to writing and
submitted to the plaintiff, who in turn submitted written reports

directly to Mbeki and Mufamadi. Smith had no personal knowledge of
progress reports to Fivaz but unit members were told by the
plaintiff
that he was keeping Fivaz informed.
[190]
Smith was taken through the allegations contained in his statement.
He maintained that the allegations against the plaintiff
were true,
elaborating as he went along.
[191]
During June 1997 he was summonsed by the plaintiff and questioned
about an article that appeared in the Weekend Argus concerning
the
nightclub owned by Palazzolo’s family members coupled with
allegations that its shareholders were under investigation
for tax
evasion. The plaintiff was most annoyed and complained that it placed
him in a bad light with Palazzolo. Smith denied having
leaked this
information to the media. It was also his evidence that after a
botched raid at a house in Johannesburg in February
1997, where PITU
members raided the wrong house, the investigation began to unravel.
According to Smith:
[119]
‘…
I
thought at that stage that we’ve got a massive problem and this
is actually where the turn point came in our investigation,
it’s
because from there a lot of things started going wrong. We came back
to Cape Town, I spoke to the plaintiff about it,
I expressed my
unhappiness and I said that we cannot pursue in this manner, it’s
not professional and certain structures
were changed and certain
things happened on my return.
When you say there was
a turning point, for whom was there a turning point…? --- Well
there was a turning point I think with
the plaintiff’s approach
towards me on the unit because I felt that even with certain
information if it’s called then
intelligence with the
whereabouts of the fugitives that were going to come…from the
DRC I felt that I was being cut out
and that certain intel was not
shared with me any longer, so I felt that, I had this feeling that I
am being distrusted or is something
wrong and the more I tried to
advise the more things were going wrong…’
[192]
Smith went so far as to suggest that Benn, who had obtained the
search warrant for that raid, was motivated by malicious intent,

insinuating that Benn deliberately botched the raid to protect
suspected Italian fugitives. Observing his testimony in chief, it

became apparent that there was merit in the plaintiff’s
complaint that Smith had an over-inflated sense of his own
importance.
He appeared to believe that he was justified in advising
the plaintiff on how to conduct the unit’s operations and felt
aggrieved
when his advice was not followed. It became clear that
Smith did not understand that the Italian arrest warrant could not,
as a
matter of law, be executed in South Africa. He maintained that
the plaintiff’s refusal to permit Palazzolo’s arrest
in
terms of such a warrant was part of the plaintiff’s hidden
agenda to protect him. He also complained that after the botched
raid
he was demoted to Investigator whereas Benn was promoted to
Intelligence Operative. It also appeared that what rubbed salt
in his
wounds was that it was Smith who had initially recommended that Benn
join the unit.
[193]
That having been said, Smith was able to give chapter and verse about
the details of his investigations while at PITU, as
well as generally
cogent explanations why he became increasingly frustrated over time
when the fruits of his investigations appeared
to come to naught.
During April 1997 he lodged a formal grievance and in the following
month applied to be transferred from
the
unit:
[120]
‘
Why did you put
in for a transfer, Mr Smith? --- …at that stage I was unhappy
and I felt that we weren’t moving forward
as a unit in
achieving our objectives. I know that we had only been commissioned
for a period of 12 months, if you look at our
appointment letter, and
I already knew that we’re reaching close to that 12 month
period, and the actual mandate has not
been achieved. And that we’re
dealing with a whole lot of other matters unrelated, which is also
highlighted in the statement,
in the later part of the statement,
which took our eye off the focus.’
[194]
It was also Smith’s evidence that, as his investigations in
PITU progressed, it became apparent to him that the plaintiff’s

relationship with Palazzolo was not above board as he had originally
been given to understand. He also gained the impression that
Fivaz
was being bypassed in the reporting line, which he regarded as
strange. His evidence also made it clear that, as he was
progressively isolated from the inner workings of the unit, he became
increasingly suspicious of the plaintiff and his activities.
[195]
Smith was referred to the allegation in his statement that he felt
misused for his knowledge and expertise as an experienced
policeman.
He was asked to explain why he felt that way and responded:
[121]
‘
M’Lady,
no case dockets were formulated. No proper reporting. The constant
sidetracking where not only myself, but I think
to an extent even
Captain Benn, were sent in other directions, except the mandate of
the Task Unit. It was very clear from the
offset, that the basis of
this investigation came from a former organised crime mandate, and it
was conveyed to become a presidential
mandate. And the amount of
monies that were spent, there wasn’t focus, there wasn’t
target orientation to take down
subjects individually. The –
and maybe now I would like to come in on the Angola visit…at a
later stage, I didn’t
even know until I was called in by the
investigators, I didn’t even know that Mr Palazzolo paid for
the plaintiff’s
trip to Angola and I didn’t know that the
plaintiff claimed subsistence from the police. And I was also
produced a document
with regards to a fitment of a kitchen, which I
had no knowledge of. So then the suspicion that I had, and as
referred to earlier…my
instincts then sort of came to a point
where there was substance of concern…’
[122]
[196]
Smith left the unit on 10 July 1997. He maintained that the final
straw was when the plaintiff informed PITU members that
morning that
the project was terminated because Palazzolo had applied for amnesty
for past political crimes, including the death
of Anton Lubowski. He
initially returned to the Project Administration Office at Organised
Crime and was thereafter re- deployed
to that unit. According to
Smith it was Viljoen who put him in touch with Senekal:
[123]
‘
M’Lady,
the day I left the Presidential Task Unit I walked past the desk of
Colonel Viljoen and I recall that he actually
grabbed my arm in me
passing by and he told me that if I wished to speak to the right
people, Superintendent Piet Senekal is currently
in the Western Cape
and he would set up a meeting for them to speak to me. And that is
how it transpired that I got…in contact
with this member of
the South African Police…
And did you ascertain
subsequently when you made contact with him why he was already in the
Western Cape? --- They were down in
the Western Cape already on
complaints that were received and filed against the Special
Presidential Task Unit.’
[197]
Smith was asked why he requested a comprehensive criminal
investigation into the activities of the plaintiff and those
associated
with him:
[124]
‘
What motivated
you to want that? Were you being malicious towards Mr Lincoln or what
was your purpose in wanting this investigation?
--- No, M’Lady.
If one looks at the contents of this affidavit…there was a
series of irregularities that transpired
over a period of time in
that office…and I was well aware at the time that with the
closure of that office there would more
than likely be an audit with
regards to the running expenses of that office and that it would more
than likely be discovered that
there were certain matters of
concern…’
[198]
Contrary to what the plaintiff alleged, Smith maintained that he was
in fact cross-examined on the contents of his statement
during the
regional court trial.
[125]
Knipe interviewed Smith for the first time after he deposed to that
affidavit. He described his interaction with Knipe:
[126]
‘
And would you
describe how it was in terms of your relationship with him when he
became involved in investigating certain matters?
--- …I was
put through extensive pressures during interrogation questioning.
What sort of pressure?
--- From verbal abuse to being sworn at. It also became very evident
to me that Director Knipe at the time
was very opposed to covert
operations, intelligence-driven projects, and he became somewhat
outspoken about it to the extent that
it became an ongoing pattern
during my visitations to his office when summoned. So in overview, I
was put through a lot of pressure.’
[199]
Smith denied that Knipe tried to persuade him to lie. Instead he
pressurised him to tell the truth. He recorded one of his
interviews
with Knipe without his knowledge for the purpose of lodging a formal
grievance against him. Smith denied that Knipe
at any stage
threatened to topple the ANC government: ‘
No,
not that I recall. That was definitely not said.’
[127]
He denied ever having had interaction with Khoisan. According to
Smith the recording was never duplicated; it was only handed to
the
plaintiff’s legal team after conclusion of his evidence in the
regional court trial:
[128]
‘
So what was the
purpose of them wanting the recording? --- For them to verify what
I’ve said. If it came up during their –
with the closure
of the case, if there was anything irregular on that recording that
they could raise it. But I stuck to what was
on the recording…I
have no recollection of having any interactions or any associations
with Mr Zenzile Khoisan regarding
this
matter…following
my handing over of that recording there was, however an article
released in the Mail & Guardian newspaper
with regards to it. And
I recall that, because at the time Director Knipe made telephonic
contact with me and he questioned me…with
regards to the
recording, because it now had put him in a spotlight…’
[200]
Smith was referred to the plaintiff’s letter of 15 July 1997
where reference was made to him investigating Smith on
suspicion that
he had been recruited by the anti-Mafia division of the Italian State
Police. Smith was not aware of such an investigation
and had never
seen the letter. As far as his suspected recruitment was concerned he
responded:
[129]
‘…
I find
that strange, because we had a bilateral agreement…there was
no need for…myself to be recruited by the Italian
Justice or
Police Department. We had an existing structure in place, so I find
that untruthful.
You were co-operating
with them, as I understand it. --- That’s correct…’
[201]
The plaintiff’s allegations about Smith’s nefarious
activities, contained in that letter, were never the subject
of any
formal investigation by the SAPS during the three year period that
followed until he was medically discharged. He denied
that any of the
allegations made against him by the plaintiff in that letter were
true.
[202]
During cross-examination Smith testified that it was Senekal who made
contact with him. According to Smith, Viljoen provided
Senekal with
his cell phone number. Senekal called and asked to meet with him
without elaborating why. When told that Senekal gave
a different
version, Smith responded:
[130]
‘
I don’t
have a recollection of that, M’Lady. I think, from my
recollection, it was the opposite way around.’
[203]
Smith also differed from Senekal about the date of their first
meeting but agreed that its purpose was to convey Smith’s

concerns about the unit’s operational functioning. He explained
how his statement was taken:
[131]
‘…
we went
through the functioning of the office and certain questions were
posed to me, and that is how the affidavit was compiled…
…
it was an open
discussion…it went about like the way that you extract
information from a complainant and you record on a
– in the
format of an affidavit…it’s like a question would be
posed that how do you – how did you guys
engage conducting
subsistence? So, out of that the overview statement was recorded in
that manner. In certain categories…there
were areas of
concern, there were certain things highlighted, from my
recollection.’
[204]
As his cross-examination progressed, Smith’s testimony became
riddled with inconsistencies. I will highlight a few examples.
He
repeatedly contradicted himself on the circumstances in which he
departed from the unit on 10 July 1997. On the one hand he
claimed
that he had not announced his resignation but rather applied for
leave through Van der Westhuizen, while on the other maintaining
that
he informed the plaintiff and unit members that he was leaving for
good.
[205]
His evidence about how he came into contact with Senekal was dubious.
He conceded that he had become aware of Senekal’s
presence in
Cape Town and the apparent purpose of his visit which, according to
Smith, was to investigate complaints made by other
units of PITU
interference. He claimed that Senekal somehow became aware that he
was on leave and instructed him to postpone it
indefinitely because
he required Smith’s immediate assistance. It then emerged that
Smith had not in fact taken leave at
all, but was placed in the
Project Administration Office on a temporary basis, during which
period he procured the use of a government
vehicle, which ultimately
led to him being investigated. It is noted that this corroborates
Senekal’s recollection, based
on his later statement, that
Rossouw appeared to be investigating Smith’s vehicle.
[206]
Smith was taken through the plaintiff’s version about how PITU
came to be established. He denied all knowledge of Le
Roux’s
initial report, the meeting arranged by Nkosi, and the subsequent
meeting with Mandela. He denied that the unit’s
mandate was
essentially to investigate Palazzolo, his associates and their
possible links to senior police and government officials.
According
to Smith the mandate encompassed a general investigation into the
activities of Cosa Nostra in South Africa in collaboration
with the
Italian authorities. He eventually accepted that a full bench of this
division subsequently held that Mafia activities
did not constitute a
crime in South Africa under POCA
[132]
and that the so-called arrest warrants for Palazzolo and his
associates could not have been validly executed in this country.
[207]
Smith was taken through his lengthy statement. He had to concede that
it had come as no surprise to him that the plaintiff
was familiar
with a particular nightclub owned by Palazzolo’s family, given
his prior knowledge that Palazzolo regarded the
plaintiff as a
trusted confidante. He conceded that he had no specific knowledge of
the plaintiff’s actual legend for purposes
of this project.
[208]
He also had to concede that Benn took full responsibility for the
botched raid, but nonetheless maintained that he suspected
Benn of
having acted with malicious intent, without being able to provide any
evidence to support this allegation. It was demonstrated
that Smith
knew far less about the details of that operation, as well as the
Angolan trip, than he claimed.
[209]
It became clear that Smith had embellished various matters concerning
the plaintiff, PITU and its members in his affidavit.
The firm
impression gained was that Smith regarded himself as far more
important and influential than he actually was; that he
had developed
a deep rooted resentment towards the plaintiff; and that he also
resented Benn.
[210]
It is no surprise, therefore, that Senekal, Knipe and Bouwer had to
go to the lengths they did in order to distil fact from
fiction in
their dealings with Smith. What cannot be disregarded however is
Smith’s testimony about the financial and related

irregularities within the unit which formed the genesis of some of
the charges the plaintiff faced. He knew that if those irregularities

surfaced during an audit of the unit he too risked criminal
prosecution:
[133]
‘…
on
instruction of the plaintiff I committed fraud. So I knew for a fact
that what was going on in there with regards to the informant
claims
was irregular besides the fact that the actual mandate or objective
of Project Intrigue wasn’t expedited, the fact
that I knew that
the Audi was a concern in particular because, and my words…to
[Thea]
van der Westhuizen time and time again was as daardie
kar betrokke is in 'n botsing gaan ons groot probleme hê…
…
I am just
singling out one example, there were a lot of other things that was
not in place and what I saw was, and it is because
of my background,
my training, when I was at Organised Crime you work on a budget, I
can’t just take the State’s money
and just decide to
spend how I wish…there is a ratification process and there
were certain matters of concern to me at the
time and that I knew
that I was being dragged into…’
[211]
Smith was referred to a letter written by one of the plaintiff’s
legal representatives in the regional court trial to
the secretary of
the Bar Council in response to a complaint filed against him by Knipe
in relation to the contents of the tape
recording. Although the
version differed in certain respects from Smith’s, what is
clear therefrom is that Smith had not
lied about making the tape
available to the plaintiff’s legal representatives.
[134]
He was also referred to a letter addressed by the member of the Bar
tasked to investigate the complaint, to the legal representative

concerned, the relevant portion whereof reads as follows:
[135]
‘
There was only
one remaining issue which concerned me and that was whether
[the
legal representative]
was under a duty not to furnish to his
client
[i.e. the plaintiff]
the tape recording which was
handed over to him, which duty may have arisen if the tape recording
could still have been an exhibit
in the trial.
Before writing this
letter I spoke to
[the legal representative]
to get
clarification on this issue and he confirmed that Assistant
Commissioner Knipe had completed his evidence at the time when
the
tape recording was handed over and there was no question of the tape
recording itself having any further relevance in relation
to the
trial.’
[212]
The implication therefore is that at some stage the legal
representative concerned may have handed over the tape recording
to
the plaintiff. However it would be inappropriate to draw any
inference therefrom, given that this testimony was only elicited

during Smith’s cross-examination, long after both the plaintiff
and Khoisan testified.
[213]
During re-examination Smith was referred to a report addressed to
Interpol in Rome and headed ‘
Anti-Mafia
Directorate Investigation’
.
[136]
This report was dated 18 June 1996, a week after Mandela requested
the establishment of the unit. Smith testified that he had written

that report. He was referred to the concluding remarks inserted by
the plaintiff which read as follows:
[137]
‘
It is
undoubtedly clear to me that since the clampdown on the Mafia groups
in Italy criminals like Mafia members have discovered
a new Mecca
called Cape Town. Our aim would be to clamp down on these absconding
criminals and to extradite them back to Italy
to stand their trial.’
[214]
He was also referred to a document dated 17 December 1996 bearing the
heading ‘
Planning
Document Italian Organised Crime Joint Operation NIA and
the
PITU’
.
It purported to be a top-secret document addressed by the plaintiff
and the Director of Conduct of Intelligence at the Ministry
for
Intelligence Service to Mbeki, Mufamadi and the Deputy Minister of
Intelligence. The letter contained the following recommendation:
[138]
‘
In order to
effectively assist and co-operate in further investigations on the
Cosa Nostra and its activities in South Africa, it’s

recommended that the NIA implement the following operational
strategies…’
[215]
The passages quoted in these communications lend credence to Smith’s
version of his understanding of PITU’s initial
mandate. Of
course, that does not mean that it was in fact the mandate which
Mandela envisaged the unit would have and which, on
the plaintiff’s
own version, was limited to investigating the activities of Palazzolo
and his associates as well as their
links to senior government and
police officials. Smith conceded however that, given the nature of
the investigation, there would
inevitably have been a degree of
overlap.
[216]
Rossouw was the last witness to testify. He retired from the SAPS as
a senior superintendent in August 2000 after almost 33
years’
service.
[217]
His evidence was that he was stationed at the Cape Town Detective
Branch when he was appointed to the investigation into the
activities
of the plaintiff and PITU members. He was called to a meeting in
Knipe’s office in which Fivaz and others were
present (he could
no longer recall who they were). He was provided with a copy of
Smith’s statement, and he and Knipe were
instructed to use it
as the basis for their investigation. He divided the information in
the statement into categories of allegations
and set about
investigating them while also looking for the necessary
corroboration. In addition he was at some stage instructed
to take
over the investigation into the charges of drunken driving and
leaving the scene of an accident.
[218]
The latter charges were extremely difficult to investigate, given
that the plaintiff’s blood sample had not been taken
after the
accident and he was never examined by a district surgeon. Rossouw
thus set about interviewing a number of eyewitnesses
involved. Their
accounts persuaded him that the plaintiff had been under the
influence at the time of the collision. He had carefully
interviewed
each of these witnesses as he was aware of the basic elements which
needed to be proved.
[219]
During the course of his investigation into the other allegations he
would regularly meet with Smith, particularly after obtaining

corroboration. The purpose was to be as thorough as possible. Smith
provided a number of follow-up statements on specific allegations
as
a result (it is common cause that Smith made a further nine
statements to the investigators and/or Bouwer before the matter
went
to trial). Once Knipe felt there was sufficient evidence to open a
docket then Rossouw would do so. Other dockets were already
in
existence.
[220]
Rossouw corroborated the evidence of both Knipe and Bouwer about the
involvement of the Attorney-General’s office from
a very early
stage. Each docket prepared by him was handed to Bouwer. The latter
in turn would scrutinise it and issue specific
instructions on what
was still needed. It was Rossouw’s task to carry out those
instructions to the best of his ability.
It was also Bouwer who
instructed him on which witnesses to bring to him for interviews.
[221]
Rossouw strongly denied that any improper influence was brought to
bear on witnesses to make false statements. He confirmed
that during
his testimony in the regional court trial there was no suggestion by
the plaintiff that he had done so. The only pressure
he placed on
witnesses was to tell the truth, informing them of the potential
consequences of providing false statements.
[222]
Rossouw denied having had a hidden agenda which drove his
investigation. He explained that he was simply tasked by Fivaz to

investigate. He had no interest in PITU’s investigations and
knew virtually nothing about them. He was aware that PITU had
taken
over certain dockets from the Cape Town Central Branch in connection
with suspected Moroccan gangsters involved in the nightclub
industry.
He was relieved when they did so because he knew that, although he
was not personally involved in these investigations,
there were
ongoing problems with these individuals which were taking up a lot of
his investigators’ time. He was aware that
some of these
investigators were not pleased when PITU took over their dockets.
What had annoyed Rossouw rather was that some of
his investigators
were seconded to PITU which increased his unit’s already heavy
workload.
[223]
Rossouw had not even known the plaintiff before receiving his
instruction from Fivaz and Knipe. He did not detect any animosity

towards him from the plaintiff during the investigation or
thereafter. The plaintiff’s allegations about Club 35 were
absurd.
Rossouw corroborated Bouwer’s evidence in this regard
but maintained that he was never the chairperson. The plaintiff’s

allegations about Club 35 had been investigated at the highest level
on the instructions of Fivaz. Rossouw was interviewed for
this
purpose but to the best of his knowledge the allegations were found
to have no substance. Certainly, he heard nothing further
about them
save for the plaintiff’s testimony in this trial.
[224]
During cross-examination Rossouw recalled having been visited by
Senekal and Bouwer at some stage. He conceded that they might
even
have been present at the initial Fivaz meeting. However he was never
provided with a copy of their Information Note and was
unaware of its
contents. Rossouw could recall, in general terms, the nature of the
charges that the plaintiff ultimately faced.
It was not possible for
him to recall specific details of the contents of the dockets that
were handed to Bouwer, given that the
investigation was completed
almost 17 years earlier. Rossouw was cross- examined at some length
about the substance of the charges
and the plaintiff’s
exculpatory version. To the extent that he was able to provide
responses they were reasoned and supported
the versions of both Knipe
and Bouwer in all material respects.
Discussion
[225]
It has been necessary to set out the evidence on the disputed issues
in some detail, given the history and fact-bound nature
of this
matter.
[226]
The plaintiff testified over a number of days. He is clearly a highly
intelligent, astute individual who one can safely accept
would have
left no stone unturned in his quest to prove that the police members
concerned deliberately conspired to maliciously
instigate his
prosecution without reasonable and probable cause. From a purely
subjective point of view he seemed utterly convinced
of this.
[227]
He was afforded ample opportunity to adduce evidence in support of
his allegations. However there were serious flaws in the
manner in
which he presented his case.
[228]
I will start with the issue of the dockets. It is not in dispute that
they were made available to his legal team prior to
the commencement
of the trial. It might be that a tactical decision was taken not to
lead him on these dockets, and it is so that
he managed to avoid
absolution at the close of his case without reference to virtually
all of them, given that his version was
largely uncontested at that
point.
[229]
However it must have become apparent to him, as the second
defendant’s case progressed, that it was crucial to have
taken
at least Knipe and Rossouw through those dockets so that the court
was placed in a position, given the onus resting on the
plaintiff, to
evaluate whether, on the objective facts, there was no reasonable and
probable cause to prosecute when those dockets
were handed over to AB
of the Attorney-General’s office and thereafter.
[230]
This could not have been an insurmountable task for his legal team.
Even if some of the contents of those dockets had been
mislaid with
the passage of time (the plaintiff’s counsel made a vague
suggestion to this effect when this issue was pertinently
raised with
him), there was simply no attempt made to take the court to the
remaining contents. The plaintiff had faced 47 charges
and it is fair
to accept that there must still have been sufficient material in
those dockets to assist the court in determining
this essential
element of his claim.
[231]
The court was given insight into only two of the dockets. The first,
relating to the count of drunken driving and leaving
the scene of an
accident, was introduced by the
second defendant
when the
plaintiff was cross-examined. In respect of the second, the Williams
count, the plaintiff referred to only two of her statements,
which
merely represented a portion of that docket. This did not assist the
plaintiff.
[232]
The largely exculpatory explanations given by the plaintiff during
this trial in relation to those charges ultimately took
the matter no
further. This was not a re-hearing of his criminal trial. Its purpose
was not to make any findings about his guilt
or innocence. A central
component to the success of his claim was for him to prove that,
based on the information which the SAPS
members had gathered, there
was no reasonable and probable cause to instigate a prosecution.
[233]
It was common cause that the plaintiff himself was not interviewed by
Knipe and Rossouw until the case was virtually trial
ready.
Accordingly, one can accept that Knipe and Rossouw relied on other
evidence gathered in arriving at the conclusion that
there was enough
incriminating material to hand over to the prosecuting authority for
consideration and decision. Scrutiny of that
material, weighed up
against the testimony in relation thereto, would have been of value,
particularly given the materially unchallenged
testimony of AB, Knipe
and Rossouw that the Attorney-General’s office had been
involved in the investigation almost from
inception.
[234]
For a reason that was not disclosed the plaintiff withdrew his claim
against the first defendant a few months before the trial
commenced.
That too may have been a tactical decision. However in so doing the
plaintiff chose to pin his colours to a very specific
mast, that of
the fruits of the investigations of the SAPS members. He must have
realised that this made it crucial for him to
produce cogent and
persuasive evidence of those fruits. The dockets provided the perfect
way to do this. This issue was pointedly
raised by counsel for the
second defendant at absolution stage. It was pertinently raised by
this court during Knipe’s testimony,
which was before any of
the other defence witnesses testified. For some inexplicable reason
this was nonetheless not pursued by
the plaintiff and his legal team.
To the extent that they believed that it was the second defendant who
bore the onus to disprove
what essentially boiled down to bald
allegations, that belief was misplaced.
[235]
The other serious flaw in the manner in which the plaintiff’s
case was presented was the selective reliance on portions
of the
record in the regional court trial. That record was treated as an
exhibit only, and it was made clear to both legal teams
at the outset
that this court would only have regard to extracts specifically
referred to during this trial. The parties also agreed
that the
probative value of the regional court transcript was merely what it
purported to be, i.e. a record of the witnesses who
testified and an
accurate account of what was said. It was not evidence of the truth
of what was said. Accordingly, where the parties
sought to rely on
the truth of the content of what was stated in the transcript, oral
evidence needed to be presented in
this court
in order for the
witnesses to be cross-examined and the truth of such evidence tested.
Without other evidence to substantiate what
was contained in the
transcript it had little probative value.
[236]
None of the regional court witnesses whose testimony was relied upon
by the plaintiff testified in this trial, and no indication
was given
that they were not available or why (save obviously for Palazzolo who
is currently serving a sentence in Italy). The
only one of these
witnesses whom the plaintiff had intended to call, Viljoen, was
subpoenaed by the plaintiff’s legal team
but he did not
testify.
[237]
Moreover, to the extent that any weight could be placed on that
testimony in these proceedings, it was largely unhelpful to
the
plaintiff. That of witnesses such as Benn, Williams, April, Van der
Westhuizen and Palazzolo merely served to support the defence
case
that they were not pressurised to lie by either Knipe or Rossouw. In
any event, this was their
testimony
given long after the
police investigation was completed. In addition, to the extent that
earlier witness statements were referred
to, they generally served to
support the existence of reasonable and probable cause to prosecute,
and not its absence.
[238]
Turning now to the other evidence. The plaintiff’s accusations
about the involvement of Fivaz in the conspiracy against
him,
reflected in his correspondence, were not pursued during his
testimony. Indeed, Fivaz was not even cited in his pleadings
as one
of the SAPS members who maliciously conspired against him. This was
peculiar, given his earlier documented complaints that
SAPS members
tried to sabotage the unit and destroy his credibility on the direct
instructions of Fivaz. Nor was this suggested
to Fivaz, let alone
canvassed with him, when he testified.
[239]
The plaintiff’s allegations about Knipe’s involvement in
the Gugulethu Seven massacre and Community House bombing
were
demonstrated to be no more than suspicion. They were not supported by
the independent record of the TRC hearings, and the
plaintiff himself
adduced no evidence to support them either. These allegations were
the primary ones proffered by the plaintiff
as the reason for Knipe’s
hidden agenda as part of the old guard. The others were of a general
and entirely unsubstantiated
nature and boiled down to Knipe’s
involvement in the Murder and Robbery Unit before the end of
apartheid.
[240]
There was no evidence that Knipe himself had interfered in PITU’s
activities or tried to sabotage the plaintiff in any
direct or
indirect way. Moreover it was demonstrated that the plaintiff himself
either suggested Knipe’s appointment as investigator
at the
Mbeki meeting or readily agreed to his appointment. No complaints
were levelled at Knipe by the plaintiff during that investigation.
On
the contrary, the transcript of Knipe’s interview with the
plaintiff during January 1998 reflects the plaintiff’s

satisfaction, both with Knipe and the manner in which he had carried
out his investigation. This was not disputed. There was furthermore

no evidence that Knipe himself was accused of having had a hidden
agenda during the regional court trial.
[241]
On the plaintiff’s own version, it was the prosecuting
authority, not Knipe or Rossouw, who caused Stofberg to change
his
statement in relation to the counts of drunken driving and leaving
the scene of an accident. His reliance on the Standing Order

containing the patently discriminatory types of accommodation for
police officers, depending upon their race, was not suggested
to have
been of Knipe’s creation. Its high watermark was that this
document was referred to when the prosecutor led Knipe
in his
testimony in the regional court trial.
[242]
It was not suggested by the plaintiff that Knipe was driven by malice
towards him when investigating the claim for an informer’s
fee
for someone placed in the office of Palazzolo’s attorney. The
upshot of his evidence was that a number of individuals
in law
enforcement agencies wanted to establish the informer’s
identity and that this is why he was charged. The plaintiff’s

account of his involvement with Knipe on the charge of theft of safe
house furniture amounted to no more than a possible discussion,

without him being able to recall the content, other than being told
that his possession of the furniture was unlawful.
[243]
On the plaintiff’s own version Knipe had nothing to do with the
Mangiagalli dockets. He conceded that the conspiracy
played no role
in the instigation of the charges against him on the counts of
drunken driving and leaving the scene of an accident;
the dockets of
crimen injuria
and disturbance of the peace; and the docket on
the count of attempted murder.
[244]
During his testimony the plaintiff made no reference to Khoisan’s
article published in the Mail & Guardian. He did
not disclose
that after completion of Knipe’s testimony in the regional
court that tape recording was made available to his
legal
representatives. This he must have known, given that he was their
client and they would not have requested it without instructions.
The
plaintiff gave no evidence that either he or his legal
representatives had listened to that recording.
[245]
The purpose of calling Khoisan to testify was clearly to portray
Knipe as a sinister member of the old guard. Both Knipe and
Smith
denied that the recording contained a threat to topple the ANC
government. Khoisan was not prepared to disclose his source.
What was
materially uncontested was that Smith handed over the recording to
the plaintiff’s erstwhile legal team (this much
was confirmed
by his own legal representative in correspondence with the Bar
Council). Thereafter someone (and I do not suggest
that the legal
representatives were in any way involved) made a recording available
to Khoisan which purported to contain a threat,
allegedly made by
Knipe. Smith was adamant that he had never spoken to Khoisan. Khoisan
conceded that he never personally met with
Smith to verify that
recording. Khoisan displayed spontaneous personal bias against Knipe
during his testimony.
[246]
Be that as it may, the plaintiff was not a member of the ANC
government and only one government official, Minister Jordan,

featured in the PITU investigation on the plaintiff’s own
version. It is thus difficult to understand how Knipe, a senior

member of the Serious and Violent Crime Unit, would have managed to
orchestrate the ousting of the ANC government by instigating
a
prosecution against the plaintiff. In any event, Knipe’s
unchallenged testimony was that the threat allegedly made by him
was
investigated at the highest level – in a police service whose
Minister was most certainly not a member of the old guard
– and
found to be without substance. It was the same Minister who conferred
an award for exceptional service on Knipe a few
months later.
[247]
The only manner in which the plaintiff sought to implicate Senekal
and Bouwer was with reference to their Information Note.
The
plaintiff’s allegations about Rossouw’s involvement in
the malicious instigation are best described as scant, apart
from
those relating to his membership of Club 35 and the counts of drunken
driving and leaving the scene of an accident, which
were shown to
have no substance.
[248]
I have already dealt with my views on Smith’s evidence. As I
have said, there is some merit in the plaintiff’s
complaints
about Smith. However what seems clear from a consideration of Smith’s
testimony as a whole is that he was the
whistle blower on this unit.
I have certain reservations that Smith was motivated by his professed
desire to do the right thing.
To my mind, it was more a case of him
realising that the chickens would soon come home to roost and that he
should take proactive
steps to cover himself as far as he possibly
could. I do not accept Smith’s version that it was Senekal who
approached him.
It is far more probable that Smith, who obviously had
an axe to grind with the plaintiff, seized the opportunity presented
by Senekal
to spill the beans and at the same time make life as
difficult as possible for the plaintiff. Senekal was a very credible
witness
and his version is in line with the inherent probabilities.
Another relevant consideration is the plaintiff’s opinion that,

in any event, Smith was only used as a pawn by those involved in the
so- called conspiracy.
[249]
Although various attempts were made to portray Senekal as having his
own agenda, the evidence of Fivaz, uncontested, was that
it was
he
who instructed that the unit to which Senekal was attached should
investigate the irregularities complained of. Senekal’s
evidence that he could not simply ignore Smith’s allegations
makes sense. He had a duty to report back to Fivaz and a number
of
Smith’s allegations directly impacted on Fivaz as the National
Accounting Officer of the SAPS. It may be that Senekal
was
overzealous in certain respects. However, Senekal did not make the
final call on whether or not PITU, and the plaintiff, should
be
investigated. That was a decision made by Fivaz. Senekal’s
evidence that after producing the Information Note he played
no
active role in the investigation was uncontested. There was also the
evidence of AB, Knipe and Rossouw that a number of complaints
made
against the plaintiff were not pursued. Moreover, Senekal’s
evidence that he previously made a recommendation in PITU’s

favour (i.e. to continue with the Nothnagel investigation) was not
challenged.
[250]
AB and Knipe were excellent witnesses. The accounts they gave of the
lengths to which they went to ensure that the investigation
proceeded
fairly and thoroughly were not shaken in cross-examination. AB’s
testimony about the opportunity given to the plaintiff
to make
representations at the highest level was not contested, nor was his
evidence that the decision to prosecute was ultimately
made by
Ngcuka, also most certainly not a member of the old guard. The
testimony of these two witnesses, taken with that of Fivaz
and
Rossouw (both of whom were also excellent witnesses) neatly fitted
with the objective facts and moreover with the inherent

probabilities.
[251]
Both Knipe and Rossouw testified that they were satisfied that
reasonable and probable cause existed. This was supported by
AB’s
testimony. In the absence of any cogent evidence having been adduced
by the plaintiff to the contrary, I must accept
their version.
[252]
Accordingly, having regard to the evidence as a whole, viewed in the
light of the applicable legal principles, I am not persuaded
that the
plaintiff has discharged the onus of proving that the relevant SAPS
members acted with malice (even on the basis of
dolus
eventualis
)
and without reasonable and probable cause. Reverting to what was held
in
Woji
,
[139]
I am instead persuaded that Senekal (and Bouwer) gave a fair and
honest statement of what they considered to be the relevant facts
to
Fivaz. Knipe and Rossouw took reasonable care to inform themselves of
the true state of affairs; gave a fair and honest statement
of the
relevant facts to the prosecutor; and left the final decision in the
hands of the prosecuting authority as it thereafter
drove the
process. The evidence shows that Knipe and Rossouw were vigilant in
how they went about verifying Smith’s allegations.
Furthermore,
and insofar as Smith’s involvement is concerned, as was held in
National
Director of Public Prosecutions v Zuma
:
[140]
‘
A prosecution
[or more appropriately in the present matter, the instigation
thereof]
is not wrongful merely because it is brought for an
improper purpose. It will only be wrongful if, in addition,
reasonable and probable
grounds for prosecuting are absent…’
Costs
[253]
There are four sets of costs standing over for determination at the
conclusion of the trial:
250.1 The costs attendant
on the withdrawal of the plaintiff’s claim against the first
defendant and the second defendant’s
withdrawal of his special
plea;
250.2 Three days of
wasted costs (7, 8 and 9 March 2017) incurred as a result of the
plaintiff’s abortive application for
the postponement of the
trial
sine die
;
250.3 The wasted costs
incurred as a result of Mr Khoisan’s failure to appear as
scheduled, which caused the matter to stand
down on 28, 29 and 30
March 2017; and
250.4 The costs of the
second defendant’s unsuccessful application for absolution.
[254]
I see no reason why the costs of withdrawal of the claim against the
first defendant should not be borne by the plaintiff.
It is also my
view that the costs attendant upon the second defendant’s
special plea and the subsequent withdrawal thereof,
as well as the
costs of the absolution application, should be borne by the second
defendant.
[255]
The plaintiff brought an application for a postponement of the trial
sine die
on the ground that he had not had sufficient time to
consult with his legal representatives to prepare for trial. He
sought to lay
the blame for his inability to consult his legal team
on the second defendant while at the same time asking for costs on a
punitive
scale.
[256]
The second defendant filed an answering affidavit, contending that
the plaintiff had only himself to blame for his lack of
readiness.
Details, supported by the relevant correspondence, were provided. The
plaintiff failed to file a replying affidavit,
and in any event
become available for the trial to proceed a few days later. There is
no reason why, in these circumstances, the
second defendant should
have to bear the wasted costs of that postponement.
[257]
The same applies to the postponement occasioned by Khoisan’s
unavailability. He assured the court that he would be able
to
continue with his testimony when the matter resumed. He failed to
appear, and later explained that he had forgotten that he
had other
commitments. While there is no reason to doubt his explanation, there
is similarly no basis upon which the second defendant
should have to
foot the bill for wasted costs incurred where a witness for the
plaintiff caused that postponement.
[258]
The second defendant sought costs in respect of these postponements
on a punitive scale. In the exercise of my discretion,
I am not
inclined to make such an order.
Conclusion
[259]
In the result the following order is
made:
1.
The plaintiff's claim against the
second defendant is dismissed.
2.
The second defendant shall pay
the costs occasioned by its special plea and the withdrawal thereof,
as well as the application for
absolution from the instance at the
close of the plaintiff's case, including the costs of two counsel
where employed.
3.
Save as aforesaid, the plaintiff
shall pay the costs incurred in respect of the withdrawal of his
claim against the first defendant,
as well as the second defendant's
costs in this action, including the costs of two counsel where
employed, and the wasted costs
of the postponements on 7, 8, 9, 28,
29 and 30 March 2017.
4.
Costs shall be taxed on the scale
as between party and party.
__________________
J
I CLOETE
[1]
Record Vol 1 pp22-23.
[2]
Exhibit B1.
[3]
Record Vol 1 p27.
[4]
Exhibit B3.
[5]
Exhibit B14-16.
[6]
Record Vol 1 p49.
[7]
Exhibit W.
[8]
Exhibit A pp4744-4746.
[9]
Fivaz handwritten note to Lavisa and Williams, Exhibit A p4743.
[10]
Exhibit A pp4722-4724,
[11]
Exhibit B pp24-25.
[12]
Act 51 of 1977.
[13]
Exhibit FF.
[14]
Paragraph 8 of the amended particulars of claim pursuant to an
amendment moved from the Bar when the matter was argued on 27
June
2017, granted without opposition.
[15]
Woji v Minister of Police
[2015] 1 All SA 68
(SCA) at para [33].
[16]
Rudolph v Minister of Safety and Security
2009 (5) SA 94
(SCA) at
para [16] and Minister van Polisie v Van der Vyver (861/2011) [2013]
SASCA 39 (28 March 2013) at para [21].
[17]
Para 17 second defendant’s heads of argument in the
application for absolution where it is stated that ‘(i)t is
accepted that they initiated the criminal prosecution against the
plaintiff’.
[18]
At para [18].
[19]
Counsel for the plaintiff relied on Heyns v Venter
2004 (3) SA 200
(T) as authority for introducing gross negligence as a ground for
liability for malicious prosecution. I am of course bound by
the
Supreme Court of Appeal authority to the contrary.
[20]
At para [34].
[21]
2009 (2) SACR 585
(SCA) at [16] – [17].
[22]
Para [20].
[23]
7th Ed. at pp366-367.
[24]
1951 (3) SA 10
(A) at 17C-H.
[25]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at para
[37]
– [38].
[26]
Supra para [33].
[27]
Chapter 5 pp131-132, 2004 edition.
[28]
Record Vol 1 p31.
[29]
Record Vol 1 p56.
[30]
Record Vol 1 p60.
[31]
Record Vol 1 p72.
[32]
Record Vol 1 p78.
[33]
Record Vol 1 p79.
[34]
Record Vol 2 p126.
[35]
Record Vol 2 p128.
[36]
Record vol 2 p130.
[37]
Record Vol 2 p141.
[38]
Exhibit B p70.
[39]
Record Vol 2 pp163-164.
[40]
Act 8 of 1959 – the new Act 111 of 1998 came into effect on 31
July 2004.
[41]
Record Vol 2 p176.
[42]
Record Vol 1 p181.
[43]
Record Vol 1 p184.
[44]
Exhibit B pp80-102 is the typed version.
[45]
Record Vol 4 pp342 – 344.
[46]
Exhibit B pp100 – 101.
[47]
Record Vol 3 pp321 – 322.
[48]
Record Vol 4 pp344-345.
[49]
Record Vol 4 pp345-346. Smith deposed to his affidavit on 16 July
1997 and the collision occurred on 27 July 1997.
[50]
Exhibit U.
[51]
Record Vol 4 p368.
[52]
Record Vol 4 pp375-379, Vol 6 pp487-490.
[53]
Record Vol 4 p380.
[54]
Record Vol 4 p390.
[55]
Record Vol 5 p455.
[56]
Exhibit A pp2707-2708 and Record Vol 5 pp461-462.
[57]
Exhibit A pp677 and 711-712, Record Vol 5 pp479-482.
[58]
Record Vol 5 p486.
[59]
Exhibit I.
[60]
Record Vol 5 p519.
[61]
Exhibit K.
[62]
Record Vol 5 p546.
[63]
Exhibit L.
[64]
Exhibit R.
[65]
Record Vol 6 pp647-648.
[66]
Exhibit A p484-485.
[67]
Record Vol 8 p670.
[68]
Record Vol 8 p677.
[69]
Record Vol 8 p692.
[70]
Record Vol 10 p767 - 768.
[71]
Record Vol 10 p778.
[72]
Record Vol 10 pp793-795.
[73]
Record Vol 10 p796.
[74]
Record Vol 10 p799.
[75]
Record Vol 10 p801.
[76]
Record Vol 12 pp815-816.
[77]
Exhibit V.
[78]
Exhibit V p1.
[79]
Exhibit W.
[80]
Record Vol 13 pp893-894.
[81]
Record Vol 13 pp900-901.
[82]
Record Vol 13 p904.
[83]
Record Vol 13 pp918-921, 926, 928, 952.
[84]
Exhibit W p37 (Exhibit A p5333).
[85]
Exhibit W.
[86]
Para 105 of this judgment.
[87]
Exhibit U.
[88]
Exhibit X.
[89]
Record Vol 14 p974.
[90]
Record Vol 14 p985.
[91]
Record Vol 14 p1011.
[92]
Record Vol 14 p1023.
[93]
Record Vol 14 p1030.
[94]
Record Vol 14 p1035-1036.
[95]
Record Vol 15 p1142.
[96]
Record Vol 16 p1165-1166.
[97]
Record Vol 16 p1167.
[98]
Record Vol 16 p1174.
[99]
Record Vol 16 p1181.
[100]
Record Vol 16 p1200.
[101]
Record Vol 16 pp1209-1210.
[102]
Record Vol 16 p1241.
[103]
See also Record Vol 16 p1212 where AB referred to the charges on
which Kahn refused to prosecute.
[104]
Record Vol 17 p1260.
[105]
Record Vol 18 p1329.
[106]
Exhibit B pp1-2.
[107]
Record Vol 18 pp1335-1336.
[108]
Record Vol 18 pp1337-1338.
[109]
Record Vol 18 p1339.
[110]
Record Vol 18 p1341.
[111]
Record Vol 18 p1342-1344.
[112]
Record Vol 18 p1362.
[113]
Record Vol 18 p1363-1364.
[114]
Record Vol 18 p1372-1373.
[115]
Record Vol 18 p1383.
[116]
Record Vol 18 p1396.
[117]
Record Vol 19 p1420.
[118]
Record Vol 19 p1422.
[119]
Record Vol 19 p1468.
[120]
Record Vol 19 p1490.
[121]
Record Vol 19 p1518-1519.
[122]
The kitchen was supposedly refitted in the plaintiff’s
residence at Palazzolo’s expense.
[123]
Record Vol 20 pp1533-1534.
[124]
Record Vol 20 p1535.
[125]
The plaintiff’s evidence was that the Smith statement was not
made available to his legal representatives before the present

trial.
[126]
Record Vol 20 p1536.
[127]
Record Vol 20 p1539.
[128]
Record Vol 20 pp1541-1542.
[129]
Record Vol 20 pp1546-1547
[130]
Record Vol 20 p1566.
[131]
Record Vol 20 pp1570-1571.
[132]
Prevention of Organised Crime Act 121 of 1998
.
[133]
Record Vol 21 pp1691-1692.
[134]
Exhibit MM Record Vol 21 pp1725-1728.
[135]
Exhibit NN Record Vol 21 p1730.
[136]
Exhibit G.
[137]
Record Vol 21 p1738.
[138]
Exhibit PP, and HHH in the regional court trial at p4958 of that
record.
[139]
Para [34].
[140]
Para [37].