In the matter between - Ms Nomachule Gigaba (Née [born]) Mingoma - The applicant; and Minister of Police - the first respondent; Directorate for Priority Crime Investigation - the second respondent (hereinafter referred to as the Hawks); Maj-Gen M O Ngwenya - the third respondent and attached to the Hawks; Capt K M Mavuso - the fourth respondent and attached to the Hawks; Sgt Norton Ndabami - the fifth respondent and attached to the Hawks; National Prosecuting Authority (“The NPA”) - the sixth respondent; and WISE4AFRICA - the seventh respondent. Case number 43469/2020 ZAGPPHC55 dated 11 February 2021, High Court, Pretoria (GP).
The applicant in this matter, Ms Gigaba, is the estranged (Afrikaans: “vervreemde”) wife of the former Cabinet Minister, Mr Malusi Gigaba.
Ms Gigaba approached the High Court in Pretoria in order to seek, inter alia, the following relief (Afrikaans: “bystand/steun/verligting”):
“1. Dispensing with the normal provisions of the Rules and dealing with this application on the basis of urgency, in terms of Rule 6(12)(a) of the Rules, read with the relevant directives.
2. Declaring that the decision of Maj-Gen M O Ngwenya and Capt Mavuso to apply for the warrant of arrest of Ms Gigaba is unconstitutional, irrational and invalid.
3. Declaring that the decision to issue the warrant of arrest of Ms Gigaba is unconstitutional, irrational and invalid.
4. Declaring that the decision to execute the warrant of arrest by Maj-Gen M O Ngwenya and Capt Mavuso is unconstitutional, irrational, invalid and of no force or effect.
5. Setting aside the decision to effect the arrest and/or to prosecute Ms Gigaba.
6. Declaring the confiscation of Ms Gigaba’s information and communication technology equipment to be unlawful, unconstitutional and accordingly invalid.
7. Ordering the respondents to restore all information unlawfully removed from ICT equipment.
8. Directing Maj-Gen M O Ngwenya, Capt Mavuso and Sgt Ndabami to return the information which was downloaded from electronic gadgets of Ms Gigaba by Maj-Gen M O Ngwenya and Capt Mavuso, including the information contained in Disc 1 to Disc 6 referred to in these papers, forthwith.
9. Directing that the costs of this application on an attorney and own client scale are paid by those respondents who will deliver notice(s) to oppose.
10. Alternatively to paragraph 9 supra: Directing that Maj-Gen M O Ngwenya, Capt Mavuso and Sgt Ndabami to pay the said costs, in their personal capacities.”
Of interest and/or importance and/or concern is that:
- After her arrest and while she was detained at Brooklyn Police Station in Pretoria, Ms Gigaba requested to call her lawyer and was advised that the right to talk to a lawyer did NOT apply to the Hawks but only to investigations carried out by the regular police! To this the court remarked that “as a (legally) lay person, Ms Gigaba believed this to be true” (see paragraph [5.2] of the 42 page long, covering 82 paragraphs judgment by the court);
- on arrival at Brooklyn Police Station at about 21:00 on Friday 30 July 2020, the regular police officials on duty at the Community Service Centre advised Ms Gigaba to get the assistance of a lawyer. They (the said police officials) also revealed “that it was curious to them that the Hawks were involved in the investigations and, to make matters worse, it was the Hawks from the Mpumalanga Province (see paragraph [5.7] of the court’s judgment); and
- that at no point was Ms Gigaba shown a warrant of arrest. An argument ensued between the regular police station members and the Hawks about the necessity of Ms Gigaba’s arrest. When Ms Gigaba requested to call her lawyer, Sgt Ndabami again refused. It was the regular police who intervened and offered her the landline at the police station, stating that she was now under their custody and that she had a constitutional right to call her lawyer. She accordingly made telephonic contact with Mr Nkhwashu (see para [5.12] of the court’s judgment).
Of further importance and/or interest is that in paragraphs ,  and  of the court’s judgment, appear the “Mandate and activities: Directorate for Priority Crime Investigation” (“the Hawks”) dated 17 September 2014.