Sibiya sanctioned renditions - inquiry

2015-07-24 20:56

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Johannesburg - Suspended Gauteng Hawks head Major General Shadrack Sibiya has been found to have been "complicit" in the illegal arrest and deportation of a group of Zimbabweans wanted for murder in that country, an inquiry has found.

Sibiya had denied the claims, saying they were to get him back for an investigation into murder allegations against former intelligence boss Richard Mdluli.

In his findings, the inquiry's chairperson Mxolisi Zondo said he could not place Sibiya at the scene of the operations in Diepsloot on November 5 2010, and on November 23 2010, but his cellphone records indicated that for the first operation he had SMSed at least 30 times and been in cellphone contact with the team carrying out the operation, as well as with former national Hawks head Anwa Dramat. This meant that he knew about it and sanctioned it.

Zondo said he had had to determine whether Sibiya - in his capacity as head of the Hawks in Gauteng and overall commander of the Tactical Operations Management Section (TOMS) in the province - which Sibiya had formed, knew or ought to have known about the illegal renditions, and was therefore complicit, or whether by conduct or omission, he had sanctioned the activities.

Some witnesses had claimed they saw Sibiya at the scene of the November 5 operation, in a dark BMW at a rendezvous in Fourways Crossing and later at Diepsloot, but Zondo said this evidence was contradictory.

Gross misconduct

Zondo had also found it too much of a coincidence that Sibiya was at the Hawks' Silverton offices on the day of the raids where a meeting was taking place between Dramat and Zimbabwean police and found it unlikely that he would not have been informed of the operation or heard about it.

Dramat has since left office.

- The first charge was gross misconduct, with Zondo finding that the unlawful raid, arrests, detention and deportation of the fugitives occurred with Sibiya's knowledge and that by his conduct he had sanctioned this, so he was guilty;

- Charge two was defeating the ends of justice and/or contravening the Immigration Act. That charge was related to a visit to Zimbabwe with Dramat to discuss the rendition, knowing that there was no extradition treaty between the two countries.

Also, in September 2010, by proclamation of the then minister of home affairs, all Zimbabwean nationals who were illegally in South Africa were allowed to stay in the country for 90 days in order to apply for special temporary residence permits. During this period no Zimbabwean national could be arrested for deportation on the grounds that they were an illegal immigrant. He was not found guilty on this charge;

- For charge three - unlawful conduct - Zondo said contradictory, and in one case "tailored", witness testimony, did not place Sibiya on the scene of the operations, or prove that he played any active role in the operations which ultimately led to three of those arrested being killed, allegedly by police in Zimbabwe. On this charge he was found not guilty;

- Charge four was gross dereliction of duty and gross misconduct, and he was found guilty on this charge because through records of cellphone calls and SMSes, it was established that he would have known about the operation and would have sanctioned it; 

- Charge five - gross dereliction of duty - because he would have known about the operations through the cellphone communication, was dismissed because Zondo found it to be the same as charge four and he saw it as an unnecessary splitting of charges.

Zondo said charges four and five bore a striking similarity to charge one regarding Sibiya's knowledge and sanction of the operation, so he was prepared to treat charges one and four as a single charge for the purposes of determining a fair sanction.

The DPCI, which he headed in Gauteng, had replaced a previous investigative unit, the Scorpions, and as the ''Hawks'' they took on major investigations.

Helped with illegal rendition

The Sunday Times reported on the allegations, and eventually, in January this year, Sibiya was suspended. 

The "general" accusations against Sibiya were that during August 5 and August 6 2010, Sibiya and Dramat visited Zimbabwe to discuss with their counterparts there how the DPCI could help them with the illegal rendition of Zimbabwean nationals who were hiding in South Africa after they had allegedly killed a policeman there.

These discussions took place knowing that there was no extradition treaty between the two countries and that rendition would be unlawful, in breach of South Africa's obligations on refugees and would have violated the Bill of Rights in the Constitution.

The accusation was that the discussions were intended to circumvent the legal processes of South Africa, and to defeat the ends of justice, rendering Sibiya unfit to continue as Gauteng Hawks head. There was also a meeting with Zimbabwean police officers at the Silverton offices of the Hawks on November 5 2010, the same day of the arrests.

Zondo said Sibiya was at the Silverton offices on the day, but had said he was not part of the discussions with the Zimbabwean delegation, but Zondo did not buy this. He said it was too much of a coincidence that he would be there at the same time, and that the senior officers present would not have mentioned the operation to him.

Later on the same day, Zimbabwean nationals Dumisani Witness Ndeya, Nelson Ndlovu, Maqhawe Sibanda and Shepherd Chuma, who were the wanted men, were arrested by members of the Hawks' Gauteng Tactical Operations Management Section (TOMS Gauteng).

With a Captain "Cowboy" Maluleke also present, they were detained at Orlando police station. One was taken to Meadowlands to find a fifth fugitive, with no success.

The four were subsequently booked out by Maluleke, who then took them to Beit Bridge and handed them over to the Zimbabwean authorities.

Officers were briefing Sibiya

On November 23 2010, another operation was held where Pritchard Chuma was arrested and detained at Alexandra police station by a policeman called Campbell, pending his deportation to Zimbabwe the following day.

Chuma was then booked out of the Alexandra police station and Maluleke took him to Beit Bridge where he was handed over to the Zimbabwean authorities.

Nyoni, Ndeya and Dube were subsequently killed, allegedly by the Zimbabwean police.

Sibiya had been accused of giving instructions regarding the operation to the DPCI and the "A-Team" within TOMS Gauteng, with Maluleke and a Colonel Neethling leading the operation.

They were going to pretend that the men were illegal immigrants who had to be deported, in spite of the Special Dispensation, when they actually planned to hand them over to Zimbabwean police.

Zondo found that between November 5 and November 8, Sibiya interacted on the phone with Maluleke and other officers during critical stages of the operation. This included more than 30 SMSes to Dramat at various milestones of the operation.

Zondo said this led him to conclude that the officers carrying out the operation were briefing Sibiya, and he was then briefing Dramat.

Zondo concluded with: "In the result, I find General Sibiya guilty in respect of charges one and four, however both charges are to be treated as a single charge for the purposes of sanction. I find General Sibiya not guilty in respect of charges two and three and charge five is dismissed."

The parties have until July 31 to present argument in mitigation or aggravation of sanction.

Meanwhile, suspended Independent Police Investigative Directorate Robert McBride heard on Friday that his application to the Labour Court in Johannesburg to interdict his own disciplinary was successful.

This relates to allegedly changing an IPID report on the renditions, which led to Dramat being cleared.

He intends challenging his own suspension in the High Court in Pretoria in August on a constitutional point, arguing that to protect the independence of Ipid, the Cabinet should have chosen the chairperson, not just Police Minister Nathi Nhleko alone.

Read more on:    hawks  |  richard mdluli  |  anwa dramat  |  robert mcbride  |  shadrack sibiya

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