War on rhino: gambling on corruption (Victory! Nzimande suspended)
Victory! October 8th, 2018. ‘Nzmande has been suspended!’
“KwaZulu Natal Regional Court President Eric Nzimande was suspended on Friday, October 5th, 2018. This is a monumental victory for human rights and South Africa’s natural heritage. Saving the Wild would like to take this moment to thank the unsung heroes who put their jobs and their lives on the line in the battle to expose the ‘Blood Rhino Blacklist’. The battle is won, now the war begins.”
-Jamie Joseph, Saving the Wild
STATEMENT OF THE MINISTRY OF JUSTICE AND CORRECTIONAL SERVICES ON THE SUSPENSION OF THE KWAZULU-NATAL REGIONAL COURT PRESIDENT.
October 8, 2018
After considering the advice of the Magistrates Commission, Minister Michael Masutha on Friday the 5th of October 2018 provisionally suspended Mr Eric Nzimande, the Regional Court President for Kwazulu-Natal Division from office.
In terms of section 13 (3) (a) of the Magistrates Act, 1993 (Act No 90 of 1993), the Minister, on the advice of the Magistrates Commission may provisionally suspend a magistrate from office if:
(i) the Commission, after affording the magistrate a reasonable opportunity to be heard regarding the desirability of such provisional suspension, is satisfied that reliable evidence exists indicating that an allegation against that magistrate is of such a serious nature as to make it inappropriate for the magistrate to perform the functions of a magistrate while the allegation is being investigated; and
(ii) an investigation has been instituted by the Commission into such magistrate’s fitness to hold office.”
It is alleged, amongst others, that Mr Nzimande on various occasions approached the Deputy Minister recommending the acting appointment of a number of attorneys for them to act in the Regional Courts within his Regional Division and, in turn, received numerous payments from these attorneys. It is also alleged that Mr Nzimande wrongfully victimized and or sexually harassed, a female acting Regional Magistrate.
The Minister delegated the appointment of acting magistrates to Deputy Minister John Jeffery and he, after consultation with the Judge President of the KZN High Courts, decided to appoint Ms Sharon Marks as acting Regional Court President for KZN with immediate effect.
The Minister trusts that the inquiry by the Magistrates Commission against Mr Nzimande will be concluded as soon as possible. It is of the utmost importance that the magistracy and its leadership must be beyond reproach.
Issued by the Ministry of Justice and Correctional Services.
For more information, please contact Mukoni Ratshitanga on +27 66 479 6012.
By Jamie Joseph, 3 October 2018
Saturday August 18th: BBC Worldwide premiered a 22 minute documentary ‘Rhinos: Killing and Corruption’, featuring Saving the Wild’s work in South Africa to expose the ‘Blood Rhino Blacklist’. In this explosive film featuring exclusive interviews from the battlefield, to the shiny brass hallways of Parliament, the world discovered that in the race to save the last of the rhinos, some of the very people put in charge of protecting South Africa’s precious wildlife are the ones causing the most damage.
According to a confidential report for the Magistrates’ Commission, and seen by the BBC:
It contains allegations against Eric Nzimande, KwaZulu-Natal Regional Court President, from one of his own acting magistrates, concerning payments being made in exchange for their appointments. Bank account searches led the investigator to widen the report to include other court officials. The Nzimande Report outlines the accusations and finds that there “appears to have [been] a pattern of racketeering activity”.
Corruption drives poaching. Last year KwaZulu-Natal suffered a record loss of 222 rhinos. Poaching is declining this year, with many unsung heroes on a crusade against corruption. Photo credit: Thomas D. Mangelsen – Saving the Wild Collection
Tuesday September 4th: Following a three-year investigation by the Magistrates Commission, the government body finally charged Regional Court President Eric Nzimande. Mr Nzimande had 14 working days to respond, and on the September 25th due date, the Magistrates Commission confirmed that only at that point they would release the charge sheet to the press.
Friday September 8th: The Magistrates Commission sends me a letter at 2:11pm on a Friday afternoon, threatening to take me to the High Court over a Facebook post if I don’t take it down by “close of business” same day. Their concern:
-Mr Nzimande has been charged for misconduct in relation to the Code of Conduct for Magistrates.
-The charges of misconduct do not relate to the allegations reflected in the blog article.
Under a cloud of suspicion, the charge sheet has still not been released, but Nzimande was charged on September 4th, two weeks after the BBC documentary ‘Rhinos: Killing and Corruption’ premiered. And he was charged “amidst allegations of racketeering and links to rhino poaching syndicates” – quoting my Facebook post. (there was no blog article)
I politely explained to the Magistrates Commission that they are going to have one serious challenge on their hands if they “want to try and control the world of social media and what people can and can’t say.”
I concluded, “Mr Eric Nzimande has no angle to take, other than to target me. And instead of protecting me, you threaten to take me to the High Court. Let me have my day in court. And let the battle begin on 22 September – World Rhino Day – when I return.”
To date, no response.
What message is put out there when the Magistrates Commission targets the very people who assist them in their investigations by providing evidence of corruption within the justice system? I am not the first to be targeted. Sadly, others have lost their jobs as a result of laying complaints. Here is just one example that has been brought to my attention by a persecuted magistrate trying to do the right thing:
“I was suspended and charged with misconduct for issuing a subpoena to have Regional Court President XXXX appear before me to explain why he sought to influence the course of justice by writing to me, disclosing prejudicial information about the accused I was busy trying for very serious offences like murder and rape.”
Read Saving the Wild’s Open Letter: #JusticeForRhinos #JusticeForZululand, with support from global icons Vusi Mahlasela, Helen Clark, Dr Jane Goodall and Thomas D. Mangelsen.
Sunday September 9th: Front page news across South Africa’s Sunday Papers. The headline ‘Rapists, killers, poachers go free’ sent shockwaves through the country.
Activist Jamie Joseph, the founder of Saving the Wild, alleged the syndicate, including Nzimande, was being paid to let rhino poachers, murderers and rapists go free with just a slap on the wrist.
Joseph followed up with an open letter to the South African government, which had the support of world renowned figures including founder of the Virgin Group Sir Richard Branson, primatologist and anthropologist Dr Jane Goodall, former New Zealand prime minister Helen Clark and local musician Vusi Mahlasela.
The letter urged the government to take action against the alleged syndicate and to support the police in their investigations.
Recently, the BBC flighted its documentary, Rhinos: Killing and Corruption, which delved into similar allegations made by Saving the Wild.
Saving the Wild, BBC, and Sunday Tribune had lifted the lid on the corruption, but the worst was still to be revealed…
Photo credit: Thomas D. Mangelsen – Saving the Wild Collection
Saturday September 22nd ‘World Rhino Day’: Award winning journalist Sam Sole publishes a mind-blowing expose titled ‘Corruption in the courtroom: A sordid tale of sex, gambling, poachers and payoffs‘.
In summary, Nzimande is suspected of offering acting magistrate positions in the regional courts in exchange for cash, which he seemingly needed to feed a gambling habit.
Worse, it appears he enabled – directly or indirectly – the formation of a network of judicial officers who are allegedly using their position to pervert justice on behalf of criminals.
In particular, Nzimande’s alleged patronage network appears to overlap partially with a group of court officials in northern KwaZulu-Natal who are alleged to have taken bribes – particularly around poaching cases, although, as we shall see, this was exposed because of a rape case.
“Magistrates Investigator Teresa Swart is the hero in this story,” says Jamie Joseph, who is a high-profile environmental activist and journalist.
“She [Swart] is up against the old guard… In her words, they have no balls,” says Joseph (of whom more later).
Swart, when contacted, proffered a more diplomatic “no comment”, but her leaked May 2017 draft report offers some insight into the obstacles she faced.
Sexual favours in exchange for magistrates positions
By early 2016, they had Gumede’s preliminary affidavit which broadened the allegations, including claims that Nzimande would make sexual advances and insinuate that Gumede was indebted to him for her employment; he would allegedly tell her of other magistrates who would engage in granting him sexual favours in return for employment perks, such as being given less work.
The evidence as analysed by Swart shows that someone using Nzimande’s non-transferable “loyalty card” visited the Durban Tsogo Sun more than 830 times between February 2003 and October 2015, including on 122 days in 2008.
Nzimande’s cash “buy in” amounted to R2 356 406. His approximate net losses amounted to R409 995 – including R88 000 in 2013.
On more than 100 days he was there before 4pm on a weekday – and on more than 120 separate days he was there until after midnight on a weekday.
Records for the Sibaya Sun from July 2007 to November 2015 do not have time records of the transactions but show he was there 342 times on weekdays.
The Rhino ring
It is clear that as Swart pursued her investigation, she became aware that some of those who had paid money into Nzimande’s account were connected to a series of poaching cases in northern KwaZulu-Natal – including the controversial matter of alleged rhino poaching “kingpin” Dumisani Gwala. (Trial starts 26 November)
Gwala was arrested in December 2014 after an eight-month intelligence-driven operation in which he was sold rhino horn by undercover cops. When they tried to arrest him Gwala put up a fight, attempted to drive over a policeman and was shot in the leg.
Attorney ZW Ngwenya (Gwala’s original defense attorney)
The man at the centre of these allegations is attorney Welcome Ngwenya, who also served stints as an acting magistrate – seemingly courtesy of Nzimande.
The draft report discloses five payments Ngwenya allegedly made into Nzimande’s bank account between December 2013 and December 2014, totalling R30 000.
Ngwenya could not be reached for comment and appears to have gone to ground. We will see shortly why that might be so.
Attorney Mpume Linda (Gwala’s current defense attorney)
Swart’s draft report notes that Linda made a R3 000 payment into Nzimande’s account on February 7 2015 after she had been appointed for a three-month stint as an acting magistrate in the sexual offences court.
Swart notes: “I notice although she was in the sexual offences court she dealt with two corruption matters, one that includes money laundering… In case [XXX] all the accused was found not guilty… A certain attorney by the name of [SS] appeared for one [of] the accused. A payment was made into Mr Nzimande’s bank account by a [SS]. This specific payment has not yet been investigated.”
The draft report also notes that Linda appeared as the defence attorney on September 5 2016 in a rhino poaching matter that “was the same case that Mr Ngwenya appeared in when he was an acting Regional court magistrate in Pietermaritzburg”.
Linda did not respond to emailed requests for a response to detailed allegations.
It was the rhino connections that led Swart’s investigative path to intersect with the fierce bushwhacking advocacy of Jamie Joseph. It is true that no one has done more than Joseph to put a spotlight on the networks of corruption decimating Zululand’s rhino population – and she was highlighting the easy bail and lenient sentences enjoyed by poachers in some Zululand courts long before anyone else had heard of Welcome Ngwenya.
A year later Joseph’s high profile and her willingness to call out Ngwenya made her a natural harbour for two whistle-blowers who claimed to know Ngwenya’s secrets.
Fresh’s affidavit is hair-raising – and worth quoting at some length. He alleges that Ngwenya set himself up as the “go to guy” in Zululand for criminals wishing to buy themselves out of trouble.
Fresh states: “During the end of 2014 beginning 2015 [Ngwenya] asked me if I know anything about poaching. I said I knew the meaning but had never done it. He told me there was a guy called Gwala who was very rich, I asked rich with what. [Ngwenya] told me that Gwala was involved in rhino horns…
“He told me that Gwala had been arrested. He wanted to do these cases because he was tired of the white people thinking that they were born with these rhino. Nobody is born with rhino in the hand. As long as these guys would continue poaching and paying him he would represent them to stop the white people from owning the rhino…
“He was not worried and said he knew all the magistrates and prosecutors and they would win all the cases one way or another. As long as he got paid well he would look after his friends. All the poachers had to tell their friends it was Ngwenya, the hero, who was going to get them out.”
Given what Swart uncovered, the commission’s pedantic diffidence seems criminally complacent.
The expose by Sam Sole goes into great detail regarding many magistrates and other justice officials who allegedly deposited money into Mr Nzimande’s bank account, often just before or after their appointment.
Read the full story.
Monday October 1st: I email key members of the Magistrates Commission and I urge them to release Nzimande’s charge sheet and respond to the journalists who have been requesting updates.
I also express my shock and disappointment at discovering that the Magistrates Commission has recommended Magistrate Ngcobo for five magisterial appointments in Zululand. The interviews for the shortlisted candidates will run between 1 and 19 October. The document I have in my possession is signed by the same person from the Magistrates Commission who sent me the letter threatening to take me to the High Court if I do not take down a Facebook post.
In 2016, long before I ever met Fresh, I was supplying the Magistrates Commission with data driven evidence that showed whenever Ngcobo was in the room with defense attorney Ngwenya, the poachers would miraculously get off with a fine, no jail time. There was also the shocking acquittal of crime intelligence police officer Gumbi from Jozini.
Read: Justice system in the crosshairs on Huffington Post.
Then in 2017, this data driven evidence was backed up with Fresh’s sworn police affidavit where he explains in detail how he was instructed by his uncle Ngwenya to pay cash bribes to Magistrate Ngcobo, while living with his uncle in Zululand.
Below is a further extract from Sam Sole’s story, published on amaBhungane, Daily Maverick and News24.
Magistrate Deuteronomy Ngcobo
Fresh claimed to know a lot about Ngcobo, the magistrate that Joseph criticised for his supposed leniency with poachers.
In his affidavit, Fresh states: “At that stage I also knew the magistrate who first worked on the Gwala case, Ngcobo. I had met Ngcobo at [Ngwenya’s] house when he had visited… During 2015 I was paying Magistrate Ngcobo on other cases where [Ngwenya] was representing the accused. [Ngwenya] would give me the money after which I would hand it to Ncgobo at the courts toilets at either Mtubatuba or Ingwavuma court. The amounts varied between ten thousand and fifteen thousand rand. Ngcobo would make sure that I counted the money in front of him in the toilet.”
Fresh was also aware of a controversial case where Ngcobo had acquitted a crime intelligence police officer from Josini who had been arrested in another sting operation.
His affidavit states: “I accompanied [Ngwenya] to Mtubatuba court where he spoke to Magistrate Ngcobo about the … case. It was agreed that he would acquit [the crime intelligence officer] in exchange for a payment of R30,000-00. After Mr Ngcobo acquitted [the officer] in court, I accompanied [Ngwenya] to Ngcobo’s house in Mtubatuba where [Ngwenya] handed me the money which I handed to magistrate Ngcobo. [Ngwenya] had brought a bottle of Hennessey along which they drank together to celebrate.”
The Teresa Swart draft report also discloses that a separate complaint was registered at the commission against Ngcobo, and he is currently being investigated for an alleged corrupt relationship with Ngwenya.
Wednesday October 3rd: As I sit here staring at the page, I can’t help but wonder if I am doing right by my family, as I begin yet another battle with some of the most powerful people in the country.
South Africa is a land of conflict, and political assassinations are rising rapidly. The Magistrates Commission is split into fractions, just like the rest of the country. Nzimande was appointed during the Zuma regime, and whilst Zuma has been ousted, corruption is entrenched.
But I am also aware that there are people on the Magistrates Commission who are speaking out against the old guard, and I am inspired by their ethics, and their courage to stand up for what is right.
I made a promise to Fresh when he handed himself in that I would do whatever it took to help the 14 year old boy who was raped.
But I also made promises to our precious rhinos tumbling into extinction, and to the unsung heroes risking their lives to protect them, that I would do whatever it takes to see that justice is done.
How many more rapists and murderers and poachers must be set free before someone with the power to do something, brings an end to such atrocities? These crooked justice officials are criminals, and they are being paid with tax payer money. They are, literally, gambling on corruption.
I call on Deputy Minister of Justice, John Jeffery, and the Honourable Mr Justice M F Legodi – Chairperson of the Magistrates Commission – I implore you to please follow up with these matters urgently. At best, members of the Magistrates Commission are stalling with the dismissal of Nzimande. And at worst, the stalling is in preparation for a cover up. But there is no excuse for Magistrate Ngcobo being shortlisted for five pending regional magistrates posts in Zululand. The sins of the past must end, if ever the healing is to begin.