Instead of clearing the air, regarding the termination of Gauteng member of the provincial legislature Nkele Molapo’s DA membership, a leaked preliminary report (seen by City Press), compiled by investigating officer Anton Coetzee on Molapo’s alleged sharing of confidential information and strategies with the EFF is raising further questions about the DA’s handling of the matter.
Molapo was expelled from the DA after being found guilty of the offence. She also recently lost an appeal against the ruling.
The preliminary report, sent by Coetzee via email in January last year to Advocate Glynnis Breytenbach, the chairperson of the DA’s federal legal commission – conceded that the investigation could not ascertain a clear nexus between the screenshot that Molapo allegedly shared with the EFF and her electronic device.
Providing the nexus, wrote Coetzee, “could at best be canvassed by leading circumstantial evidence”.
He also advised the DA that the party might have to engage in “some fancy footwork” – a statement Molapo and other DA leaders saw as an indication that the party sought to find her guilty at all costs.
The DA leader who shared the preliminary investigation report with City Press said that all sense of impartiality had indeed been discarded when it came to the Molapo investigation, the outcome of which had seemingly been predetermined.
These sentiments were echoed by Molapo herself, who told City Press that she had been given with the report this week.
“My thoughts on the admission by the investigating officer are that the party knew when it decided to charge me that there was no case against me and that I could have been framed, which is what I raised with the panel in the disciplinary hearing. I strongly feel that the investigating officer was given a predetermined outcome and he had to find reasons for it.
The investigation was biased. I was never interviewed as part of it and [Coetzee] even tried to get me to recommend names of people in our then caucus who would support my version, so as to balance the investigation,” said Molapo.
Breytenbach declined to comment, saying she was not involved in the disciplinary hearing, and directed our enquiries to Werner Horn, deputy chairperson of the DA’s federal legal commission.
While making it clear that it was “not the DA’s practice to either publicise investigation reports or comment in public on leaked investigation reports of the commission”, Horn confirmed that, “as part of any investigation, it’s expected of committee assistants [who lead investigations into possible misconduct, in this case Coetzee] to advise the federal executive, among other things, of possible hurdles that could be faced in terms of the evidence that would need to be presented”.
“It also has to be remembered that, as a rule, circumstantial evidence may be taken into account in terms of South Africa’s law of evidence, provided that certain tests are applied to determine whether such circumstantial evidence can be deemed acceptable and sufficient.
This will always require some skill [‘fancy footwork’] on the part of a committee assistant,” said Horn.
He added that “both a panel of first instance and a panel of appeal have found that the party proved, on a balance of probabilities – as is required by the federal constitution – that Molapo is guilty of the misconduct she’s accused of after these panels had considered the totality of the evidence presented in the hearing”.
What has also been called into question is the investigation’s lumping together of charges that were not initially communicated to Molapo.
While the DA initially sought to ascertain whether she was the one who leaked sensitive information to the red berets, and whether this had caused harm to the party’s interests, the investigating officer also probed Molapo’s alleged failure to adhere to a caucus decision.
“On September 27 2018, there was a motion of no confidence and removal submitted to council to remove the mayor. In a caucus prior to the council meeting, it was decided by the caucus that all DA members would wear blue clothing at the meeting. Councillor Nkele Molapo was present at the caucus meeting.
At the council meeting, all DA members were dressed in blue, except Councillor Nkele Molapo, who decided to wear red clothing,” reads the leaked preliminary report.
Regarding this extra charge, Molapo said: “I was shocked to see that there was that charge too. We were instructed in the morning via WhatsApp to wear blue, but at such short notice, the closest colour I had to blue that was appropriate to wear when attending the council was black.”
She shared a picture taken on the day that showed her in a black top with only a red necklace, contrary to the description provided in the investigation.