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The lead investigator in the case against former Crime Intelligence officer Morris "Captain KGB" Tshabalala purposely misled the court, bringing his credibility into question, the Specialised Commercial Crime Court found on Thursday.
The finding against suspended Independent Police Investigative Directorate (IPID) investigator Cedrick Nkabinde and what he deposed in court led to Tshabalala being granted bail.
Tshabalala's first bail application was denied in January.
He has been charged with fraud, theft and corruption relating to the submission of alleged fraudulent invoices to the tune of R563 005 for blinds and curtains for safe houses in Pretoria.
READ: 'Captain KGB' Tshabalala released on bail
In her judgment, Magistrate Nicola Setshogoe found that Nkabinde had misled the court and said his actions were tantamount to ill-conduct.
"It creates doubts in the mind of the court that whatever was deposed by Nkabinde is the truth," Setshogoe said.
Claim that case is politically motivated
At a previous court appearance, Tshabalala's attorney Mpesi Makhanya, who was called to testify, said that Nkabinde, the investigating officer in the Tshabalala matter until he was suspended in May, called him on the morning of a court appearance in June.
Makhanya testified that Nkabinde told him: "My brother, I wish I could assist that brother (Tshabalala). He must be out on bail and not in detention."
Makhanya also said that Nkabinde told him that Tshabalala's case was politically motivated, which is why Nkabinde wanted to be called to court to testify in favour of the former Crime Intelligence operative.
However, in a sworn affidavit presented to court by prosecutor Chris Smith, Nkabinde denied that he wanted to testify in a bid to have Tshabalala released on bail.
"At no stage did I say Morris Tshabalala should be released on bail," Nkabinde said in his affidavit.
"At no stage did I say I will come to testify on behalf of the accused person."
Nkabinde 'not playing open cards'
On Thursday, Smith presented the call records of Makhanya and Nkabinde to court. He told the court that there were three telephonic conversations between the two on June 20.
Makhanya testified about all three calls, but in his affidavit, Nkabinde only makes mention of two calls.
ALSO READ: Suspended IPID investigator denies offering help to 'Captain KGB' in bail application
"It is evident that Mr Nkabinde is not playing open cards with the court, that is why he is afraid," said Smith.
Nkabinde was due to testify on Thursday, but did not come to court, telling Smith that he was afraid. Additionally, in a lawyer's letter sent to Setshogoe, Nkabinde said he did not trust IPID, which had organised for him to get to court.
The email detailed that there were various irregularities in the conduct of IPID and that Nkabinde did not feel safe in their hands.
The State conceded that based on Nkabinde's omission of the third call, he did say that Tshabalala deserves bail and that the case against him is politically motivated.
Phahlane case
Smith further said that Nkabinde was no longer a trustworthy witness and that everything he said in the original bail application and his affidavit in the subsequent bail was now questionable.
"Did he play open cards in the main bail application? Because he definitely isn't playing open cards in the bail on new facts."
As a result, the State decided to not oppose bail.
Nkabinde, who also investigated the fraud and corruption case against former acting national police commissioner Khomotso Phahlane, has also been accused of changing his stance against Phahlane.
IPID spokesperson Moses Dlamini previously said two of their investigators and a vetting officer were offered positions in the South African Police Service (SAPS) in return for being part of a conspiracy to undermine IPID investigations against Phahlane and for making false statements against IPID boss Robert McBride.
Dlamini further said that Nkabinde had written to Police Minister Bheki Cele and made false allegations of unethical conduct against McBride.
R5 000 bail
McBride also responded, saying Nkabinde's allegations were made to "boost his chances of being accepted by the SAPS, some of whom are under investigation by the IPID (sic)".
"We have received information that our investigators were allegedly paid money to make false allegations against IPID investigators who are investigating Phahlane. IPID will not be deterred from pursuing its investigations."
After Tshabalala was granted bail of R5 000, Makhanya said they have always believed that his case was politically motivated and the calls from Nkabinde proved that.
Makhanya added that Tshabalala and his family were relieved that he had finally been granted bail.
The case against him has been postponed to October 1 for Tshabalala's legal team to make representations on why he should not be prosecuted.
Commenting on the outcome, IPID said that Nkabinde did not show up to court because he knew that the allegation that the case against Tshabalala was politically motivated was false.
"The result is that a convicted criminal is out on bail due to the actions of someone who has sold his soul for the highest price," said Dlamini.
"It is important to note that Nkabinde contacted Tshabalala’s attorney in June 2018 long after his suspension. The IPID feels vindicated in suspending him."
