Gauteng Hawks head Maj-Gen Ebrahim Kadwa has initiated a legal challenge against the Madlanga commission of inquiry and acting police minister Firoz Cachalia to have his phone with “state secrets” returned.
The phone was seized by police in May during Kadwa’s arrest in a case related to a breach of the Precious Metals Act and a charge of defeating and obstructing the course of justice.
The charges emanate from a 2021 case. Kadwa faces charges alongside police crime intelligence operational support head Maj-Gen Feroz Khan and businessperson Tariq Downes.
In papers filed in the high court in Johannesburg, Kadwa described the allegations against him in that case as “unfounded”.
On Monday he filed an amended notice to the litigation against Cachalia, police crime intelligence head Lt-Gen Dumisani Khumalo and investigating officer Calvin Khorommbi to add the Madlanga commission as respondents in the litigation.
“Should it be found the mobile cellular device is found to be in the possession of [the Madlanga commission], or anyone acting on their behalf or instructions, it must forthwith restore the above-mentioned mobile cellular device back to the applicant, given the fact that the mobile cellular device was obtained by [police], unlawfully in the first place,” Kadwa’s supplementary affidavit reads.
In the litigation Kadwa cites the commission’s chair, retired justice Mbuyiseli Madlanga, and commission secretary Dr Nolitha Vukuza.
While the application was withdrawn from the urgent roll on the eve of the hearing on Monday to give the commission time to respond to the papers, it will be enrolled again for a hearing on a new date on the urgent roll.
Arrest warrant
Kadwa contends on May 10 police had a warrant to arrest him but did not have a warrant to seize his phone. He wants the court to direct the police and the Madlanga commission to return his phone and prohibit police from seizing it again without consent or a court order.
The latest action against the commission comes after the state attorney office recently informed Kadwa the phone was handed over by police to the Madlanga commission of inquiry into allegations of criminal infiltration in law enforcement.
The court papers show the state attorney office last Thursday wrote to Kadwa informing him to withdraw the application due to the matter being moot because the Madlanga commission had directed for the cellphone to be handed over to them by police.
“As appears from the notice, our clients are directed to provide to the Madlanga commission any forensic images produced for the purposes of our client’s investigations against the applicant, together with any passwords, access codes seizure records, chain of custody documentation, or forensic reports relating to the devices,” the state attorney office letter reads.
The state attorney indicates on May 29 the devices were due to be handed over to the commission.
“Our instructions are that our clients have handed over the seized articles which are the subject of dispute in this matter. The relief sought against our clients [police] has become moot.”
The rules of commission of inquiries allow the chairperson to summon any person to produce a document in his or her possession or under his or her control which has a bearing on a matter being investigated.
Kadwa’s attorneys HS Patel Incorporated have indicated their client intends to continue with the litigation and seeking the same relief against the Madlanga commission to return his phone because it was seized by police without a warrant.
In court papers, Kadwa said he refused to give police officers the phone’s pin code to protect sensitive information.
“I refused to provide the pin code, citing the fact that my phone contained state secrets and other sensitive data which as head of the DPCI (Directorate for Priority Crime Investigation), I could legally not share with them, given the fact that from an administrative law point of view, it was not clear to me whether anyone of these officers had the requisite administrative and executive clearance to see the sensitive information entrusted to me,” he argued.
The matter has not yet been heard by the court.
Sinesipho Schrieber
www.timeslive.co.za
