Johannesburg – Menzi Simelane, the former prosecutions boss currently vying for the National Director of Public Prosecutions (NDPP) position, faces serious allegations that he deliberately sabotaged investigations into the controversial arms deal. These claims come from prosecutor Billy Downer, who worked on the case.
Downer's testimony, given to the State Capture Inquiry in May 2021 but never made public, details how Simelane, as head of prosecutions, effectively shut down the state's efforts to investigate the arms deal and freeze millions of rands in suspected bribes to Fana Hlongwane, a consultant with political connections. News of Downer's affidavit emerged during last week's NDPP interviews, when fellow candidate Hermione Cronje revealed its existence.
The affidavit focuses on the Scorpions unit's investigation into payments to Hlongwane from British arms company BAE. The UK's Serious Fraud Office (SFO) had alerted South African authorities to these payments, leading to suspicions of corruption and fraud.
According to Downer, the SFO requested mutual legal assistance from South Africa in 2006, seeking information about Hlongwane's involvement. However, Simelane, then the director-general of the justice department, allegedly declined this initial request, suggesting an alternative approach. This delayed the investigation into Hlongwane.
A team from the SFO later met with the Scorpions, outlining their investigation into potential bribery of South African officials by BAE agents. They sought assistance in tracing the destination of substantial commissions paid to BAE's South African agents, aiming to determine if the money was used to bribe officials connected to the arms deal.
Downer stated that this engagement made it apparent to the Scorpions that the SFO's evidence raised a reasonable suspicion of serious offences, including corruption, within South Africa. Consequently, the Scorpions and SFO sought to conduct parallel investigations and share information.
However, Simelane allegedly interfered with the NPA's arms deal investigation. Downer claims Simelane arranged a meeting in London with the SFO, designed to question the cooperation between the NPA and SFO. Furthermore, Simelane allegedly prevented the NPA's applications for mutual legal assistance in the arms deal from being sent to Liechtenstein, Switzerland, Jersey, and the United Kingdom, despite the NPA having obtained High Court orders to support these applications.
Downer also alleges that Simelane declined to recommend the NPA's application for its arms deal team to travel to Switzerland to finalise the mutual legal assistance request for details of Hlongwane's Swiss bank accounts. Additionally, Simelane allegedly failed to transmit to the NPA an application for mutual legal assistance received from Germany concerning a German aspect of the arms deal investigation.
After Simelane's appointment as NDPP in 2009, Downer claims he further frustrated the NPA's arms deal investigation by disbanding the investigating team and failing to provide dedicated resources to assist police investigators.
Simelane is also accused of interfering in the justice department's management of the NPA's application to Switzerland for mutual legal assistance regarding Hlongwane's alleged corruption. Downer states that Simelane withdrew a court order obtained by the NPA to preserve Hlongwane's bank accounts in Liechtenstein, suspected to contain proceeds of crime related to corruption and money laundering.
Downer told the inquiry that Simelane's actions resulted in the collapse of the state's efforts to gather evidence against Hlongwane and recover alleged bribes. He asserted that the lost investigations, spanning over a decade, seriously impeded efforts to address grand, transnational corruption.
In March 2010, a meeting took place between Simelane, Asset Forfeiture Unit (AFU) head Willie Hofmeyr, state officials, and Hlongwane's advocate, Jaap Cilliers. During this meeting, Hlongwane's lawyers argued that his involvement in an arbitration process related to his consultancy work for the arms deal justified the payments he received.
Downer disputes this, stating that the arbitration proceedings did not legitimise the payments. He further alleges that Simelane incorrectly assumed that BAE's settlement with the SFO meant that the SFO had agreed that BAE had not been involved in corruption.
NPA official Karla Saller, who attended the meeting, noted in a memorandum that she believed Simelane had already decided to withdraw the preservation proceedings, regardless of the merits of the case or the broader interests of justice. She expressed embarrassment at being involved in a process she considered farcical and contrary to justice.
On Simelane's instructions, the order freezing Hlongwane's funds in Liechtenstein was withdrawn in March 2010.
Downer concludes that Simelane's actions, both as director-general and NDPP, brought an end to any prospects of successfully addressing the criminality uncovered by the Scorpions' arms deal investigation.
Simelane has reportedly insisted that a lack of evidence prompted him to call off attempts to freeze Hlongwane's foreign assets, claiming that what initially appeared to be incontrovertible evidence against Hlongwane turned out to be less clear-cut upon closer inspection.
The NDPP advisory panel is expected to reveal its recommended candidates for appointment to President Cyril Ramaphosa soon. Despite the serious allegations against him, Simelane remains a contender for the position.
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