Durban - Suspended “Cato Manor” policemen who were facing charges of racketeering relating to allegations that they operated as a hit squad said there was not a shred of any such evidence in the voluminous documentation they had been given by the State for trial preparation.
And they have now launched an urgent Durban High Court application, directed personally at Nomgcobo Jiba, who as acting head of the National Prosecuting Authority authorised their prosecution under the Prevention of Organised Crime Act, saying her conduct was so “egregious” that she should be made to pay their legal costs from her own pocket.
They asked how it was possible for her to properly apply her mind to the contents of 23 dockets in just one day when it had taken them, an expert and their attorney almost six weeks to study the documents.
“We submit that the provisions of the constitution (relating to procedures for decisions to prosecute to prevent abuse) were not followed… she simply rubber-stamped the prepared indictment. Her decisions were made with ulterior purpose,” they said.
The application, made in the name of Rubendren Naidoo on behalf of 17 of the 27 policemen who are facing racketeering charges, was filed at court last week and has been set down to be heard in September.
It was served on the NPA on Friday and NPA spokesman Luvuyo Mfaku said on Sunday that it would be opposed, while declining to comment further. However, its chances of success are good because it mirrors a successful application brought by their former co-accused, KZN Hawks boss Johan Booysen, who has been cleared of all charges and is back at his desk.
Should they succeed in getting the two racketeering charges quashed, it means “ the glue” that binds them together falls away and the State will then only be able to charge individuals with individual offences in separate trials in the regional courts.
In his judgment on the Booysen matter, Judge Trevor Gorven ruled that Jiba could not have applied her mind properly. While she said she relied on four statements, one was dated after her decision, one was never signed, and none implicated Booysen in any offence.
Jiba has now been charged criminally with fraud and perjury.
The policemen said Jiba authorised their prosecutions on the same day as Booysen’s, so it was likely that the material in front of her would be identical.
Regarding their audit of the dockets and statements provided by the State, they said they could find no evidence relating to the racketeering charges.
“It transpired that there was no racketeering docket although the SAPS administration system provides for one to be registered on the system.
“When we were first arrested (in June and August 2010) none of us were warned that we were to face such charges. This only came to the fore when General Booysen was arrested and we suspect that it was introduced as an offence to overcome the fact that there was no evidence demonstrating him to be complicit in any of the predicate offences.
“Racketeering was thus a tool employed to charge Booysen in the absence of any evidence against him. In order to do that, we had to be unlawfully dragged into it.”
They said in the vast majority of the dockets there was no direct evidence implicating any of them in the other (murder, housebreaking and assault) charges as set out in the indictment.
“Most of the cases are based solely on our mere presence at various scenes where shooting took place.
“Those shootings took place in the course and scope of our employment while trying to apprehend dangerous suspects.”
The men said that they had knowledge of - but have not been given - two memorandums prepared by prosecutor G S Maema which contain “bald statements” regarding racketeering without the detail and peculiarity required in order to authorise a prosecution.
They referred to the NPA Act which states that prosecutors must act impartially and decisions to prosecute must be taken with great care. And yet it seemed that Jiba had ignored the fact that in respect of many of the dockets other prosecutors had rendered them nolle prosecui and inquest magistrates had held that no one was responsible for the deaths.
The Mercury