Durban - The decision to prosecute the former KwaZulu-Natal Hawks boss, Major-General Johan Booysen, was irrational and arbitrary, the Durban High Court has heard.
Arguing during an application on Friday to have racketeering charges against Booysen thrown out, his senior counsel, Anton Katz, said the decision by the then-acting national director of public prosecutions, Nomgcobo Jiba, to charge Booysen had fallen short of constitutional standards.
Booysen and 27 co-accused, all suspended members of the now defunct Cato Manor organised crime unit, were arrested in 2012 and charged on 116 counts, which included 28 of murder.
They are accused of having operated a death squad under Booysen’s command.
Some of them packed the courtroom on Friday as Judge Trevor Gorven heard arguments for and against the veracity of Jiba’s decision to indict Booysen.
The decision was based on statements by the former Cato Manor unit commander, Colonel Rajen Aiyer, former police reservist and Booysen’s friend, Aris Danikas, and a police informer known only as Ndlondlo.
Katz told the court that the statement by Aiyer amounted to nothing other than “office politics” and that at the time the public prosecutor, who is the second respondent in the matter, had not had the statements in his possession nor could it have been completed as Aiyer had been ill.
Danikas’s statement was discredited because it was not signed or dated, nor did it have any links to the author.
The statement also relates to an event in a period not covered by Booysen’s indictment, and because the State had instituted proceedings to obtain it, the State could not have had it at the time.
Katz said: “The statement of Ndlondlo, apart from being replete with hearsay and double hearsay, also does not implicate Booysen.”
He argued that the more worrying aspect of each of these statements related to their actual existence by August 17, 2012, when Jiba approved prosecution, and whether Jiba had, or could have, taken them into account when she made her decision.
“It is in this context that the applicant (Booysen) referred to the first respondent (Jiba) as mendacious when she contended that she had taken these statements into account,” Katz said.
He said Booysen had further invited Jiba to explain how she could have taken information, which she stated she did under oath, into account whereas this “objectively did not exist when she made the decision”.
Jiba had not accepted the invitation, he said.
“This leads to the inescapable conclusion that the applicant is correct in his assertions in this regards.”
However, prosecutor Laurence Hodes argued that the Prevention of Organised Crime Act did not require that Jiba had to have evidence under oath before making such a decision.
He also challenged the court’s authority to hear the application, saying that since the decisions being challenged were made in Pretoria and Joburg, which is where the respondents were also based, it was the North and South Gauteng High Courts that had jurisdiction over the matter.
Katz said Booysen’s criminal prosecution, which was as a result of Jiba’s decision, was at the Durban High Court so the correct court was hearing the application.
Responding to Hodes’s averment that the application was premature as Booysen had the constitutional right to a free trial, including the right to challenge evidence during the trial, Katz said: “He (Booysen) can’t sit back and wait for an invite (to raise the matter).”
Gorven reserved judgment.