Durban - The national director of public prosecutions, Pietermaritzburg-born Shaun Abrahams, has been accused of abusing his power for reinstating charges that were deemed unlawful by a Durban High Court judge.
“They are a part of a pattern of illegal activity by the National Prosecuting Authority (NPA) aimed at prosecuting us for crimes we have not committed, and with a clearly ulterior purpose,” said suspended head of the KwaZulu-Natal Hawks, Major-General Johan Booysen, in court papers.
Booysen and 17 policemen, most of whom were members of the now disbanded Cato Manor Serious and Violent Crime Unit, yesterday served papers on Abrahams as well as former acting head, Nomgcobo Jiba (now deputy head), and the provincial director of public prosecutions, advocate Moipone Noko.
The men - including Warrant Officer Rubendran Naidoo, Warrant Officer Adriaan Stoltz, Detective Warrant Officer Paul Mostert and retired Lieutenant-Colonel Willem Olivier - are calling for the racketeering charges against them to be reviewed and set aside.
The penalty for racketeering offences, said Booysen, was a fine of up to R1 billion and life imprisonment.
NPA provincial spokeswoman, Natasha Ramkisson-Kara, on Thursday confirmed receipt of the court papers and said the NPA, and all the respondents listed, would be opposing the application.
“This is the third time that we as applicants have had to approach this court to set aside an unlawful decision by the national director of public prosecutions to authorise charges of racketeering against us,” said Booysen in his affidavit on behalf of the 17 policemen and himself.
“This case is not merely about the applicants,” he said. “It is about the independence, impartiality and integrity of the NPA. The NPA is required to act without fear, favour or prejudice’. Instead, it is pursuing a political agenda, apparently to protect certain individuals from justice,” Booysen claimed.
He explained that he successfully had Jiba’s decision to authorise racketeering charges against him set aside in the high court when Judge Trevor Gorven found there was no evidence before Jiba to warrant the charges. Based on this judgment, his co-accused had brought a similar application to have the charges, authorised by Jiba against them, quashed.
That application is pending, but he said his colleagues had no objection to both applications being heard together.
In February, Abrahams issued two new authorisations for charges to be brought against all 18 applicants. Booysen argued both the indictments from Jiba and Abrahams were identical, saying “Abrahams does not appear to have applied his mind to whether or not he should authorise the charges.”
Their application is not about the 114 other counts against all the accused, which they intend to challenge at their criminal trial.
The first indictment against 30 policemen was that the Cato Manor unit had acted as an enterprise that engaged in a pattern of racketeering activity between May 2008 and September 2011.
It was alleged the men had killed members of the KwaMaphumulo Taxi Association which was in conflict with the KwaDukuza Taxi Association, ordinary civilians and or suspects and criminal gang members suspected of ATM bombings.
It was further alleged the men committed various other related offences, including attempting to cover up the killings by planting guns.
This was apparently done for performance awards or financial benefits from the enemies of those who were killed.
Booysen and the 17 other policemen all maintain their conduct was “at all times lawful”.
The second indictment, said Booysen, was identical to the first, including the errors. He said it still included the policemen who have since died. He also said the witness list and the 116 counts were identical.
According to Booysen’s affidavit, the Prevention of Organised Crime Act charges are “a brazen and disingenuous attempt to manufacture a criminal charge against us without any factual basis”.
He accused Abrahams of undermining a high court judgment by reinstating charges against him that were already declared unlawful and called it “a plain abuse of power”.
Booysen said in the case of the other applicants, Abrahams took a decision on whether to authorise the racketeering charges against them despite the court decision still pending.
“Until that decision is set aside by a court of law, advocate Abrahams has no power to take another decision,” said Booysen.
He also called the NPA’s decision to only charge some and not all of the 30 listed accused with racketeering, irrational.
Booysen is currently still under suspension despite Durban High Court Judge Anton van Zyl’s ruling in November setting aside the suspension.
Hawks head, Lieutenant-General Berning Ntlemeza had petitioned to the Supreme Court of Appeal (SCA) challenging van Zyl’s decision.
The judge had found that Ntlemeza had acted irrationally in suspending the provincial Hawks head.
The SCA has now referred the matter to oral argument. In the interim, Booysen had filed a complaint with the Independent Police Investigative Directorate, accusing Ntlemeza of perjury for saying in his petition that Booysen had participated in a process to fill the position he still occupied while suspended.
The Hawks appointed Major-General Jabulani Zikhali as provincial Hawks head despite the legal action.
Daily News