Advocate Andrea Johnson, head of the Investigating Directorate Against Corruption (IDAC), was criticized for applying an incorrect legal test during a high-profile investigation [1].
The error calls into question the legitimacy of the process that led to the arrest of Lieutenant-General Dumisani Khumalo and six other individuals [2]. Because the IDAC is responsible for tackling corruption among senior officials, any procedural failure risks the collapse of critical prosecutions.
During hearings before the Madlanga Commission, Justice Mbuyiseli Madlanga questioned Johnson regarding the assessment of a Section 27 affidavit [1]. The commission found that Johnson applied a subjective test rather than the objective "reasonable person" standard required by law [1]. This distinction is critical in determining whether there is sufficient legal ground to proceed with an arrest.
The investigation in question resulted in the arrest of seven people [3]. The scrutiny focuses on whether the IDAC followed proper legal protocols, or if the process was flawed from the outset due to the misapplication of the legal standard [1].
Questions also emerged regarding the influence of the suspended Police Minister on the probe. Some testimony suggested the minister may have influenced how the IDAC handled the allegations [1]. However, Johnson said that nothing in the minister's letter triggered the IDAC's mandate to start the investigation [2].
Justice Madlanga questioned Johnson on whether her actions were influenced by fear or external pressure [1]. The commission is examining whether the IDAC solicited the affidavit from Fadiel Adams specifically to facilitate the arrests [2]. The proceedings are now focusing on the systemic implications of these procedural concessions.
“Johnson applied a subjective test rather than the objective "reasonable person" standard required by law.”
The admission that a subjective legal test was used instead of an objective standard creates a significant vulnerability for the prosecution's case. In South African law, failing to meet the 'reasonable person' threshold can be argued as a violation of due process, potentially providing the legal grounds for the seven accused to challenge their arrests as unlawful or procedurally flawed.
