By Johnathan Paoli
Deputy Director of Public Prosecutions (DDPP) at the Investigating Directorate Against Corruption (IDAC), Peter Serunye, told the Madlanga Commission of Inquiry on Tuesday that the case against suspended Crime Intelligence Chief Financial Officer Major-General Philani Lushaba should never have been brought before a court.
Serunye disputed earlier testimony by former IDAC head Andrea Johnson, who told the commission she had no involvement in the investigation.
He said Johnson had exaggerated his role and attempted to shift responsibility onto him.
He testified that he only became involved in the Lushaba matter, as well as the controversial case involving Brigadier Dineo Mokwele, months after the arrests had already been made.
“She is throwing me under the bus in that she got me into the case to oppose the Section 63A bail amendment, but when she comes before the commission she says something else, as if I was doing things on my own. If she didn’t instruct me to be part of the case, I wouldn’t be sitting here today,” Serunye said.
Serunye told the commission his understanding was that Lushaba had allegedly been drugged and robbed after an encounter with a sex worker, making it difficult to understand why he was facing charges of corruption, perjury and defeating the ends of justice.
He said he immediately questioned prosecutors, investigators and IDAC Head of Operations Mathews Sesoko about the basis for the prosecution, asking who the suspects were, what offences had allegedly been committed and whether there was evidence in the docket to support the charges.
Emails presented to the commission showed Serunye warning: “We have a problem here,” adding that he had “never seen anything like this” after concluding that the warrant application failed to disclose an offence.
After reviewing the docket and consulting with the prosecution team, Serunye said he remained convinced there was neither a prima facie case nor a reasonable prospect of securing a conviction.
He testified that, apart from the robbery itself, the only possible offence he identified related to the alleged mishandling of the docket.
“My preliminary view is that, if anything, this is a district court matter (defeating the ends of justice against whoever is alleged to have removed Lushaba’s initial complainant’s statement in the docket). The magistrate was not even supposed to have authorised a J50 (warrant) because the application for some reason does not even disclose an offence. It is like one is reading heads of arguments,” he said.
Expanding on earlier testimony, Serunye said he repeatedly requested a copy of the Section 27 referral submitted by National Coloured Congress MP Fadiel Adams because, as the senior prosecutor on the matter, he wanted to satisfy himself that the referral existed and justified the investigation.
According to Serunye, Johnson questioned why he would not simply accept investigators’ assurances that the referral existed, but he insisted on examining the document himself.
He said IDAC chief inspector Dylan Perumal later claimed to have the Section 27 referral and briefly showed him what he said was the document while holding it in his hand, without allowing him to inspect it properly or retain a copy.
Serunye told the commission he has since concluded that the document Perumal showed him was not a Section 27 referral at all, but a witness statement marked “A1”.
He said the three-page document largely repeated the complainant’s statement and appeared to contain inconsistencies regarding where it had been signed and commissioned.
Serunye testified that he warned junior state advocate Joy Hlatshwayo the State would encounter difficulties with the referral and later discovered the document shown to him was not the referral investigators had claimed it to be.
He also acknowledged that although he was concerned when Johnson instructed prosecutors not to disclose the Section 27 referral to the defence, he “didn’t have the guts” to challenge the directive because he feared the consequences.
Commissioner Sandile Khumalo described the admission as deeply concerning.
Concluding his testimony, Serunye maintained that his involvement in both the Lushaba matter and the Mokwele appointment case was undertaken in good faith despite what he described as fundamentally flawed prosecutions.
“I would like to state that my involvement in this matter, which was after the accused’s appearance in court, was for good intentions and part of my daily duties,” he said.
The commission adjourned for the day and is expected to resume hearings on Wednesday morning.
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