Durban - KwaZulu-Natal Hawks boss Major-General Johan Booysen insists the decision to prosecute him and his 27 co-accused on racketeering charges was “irrational, invalid and unconstitutional”.
In his replying affidavit, filed on Friday, Booysen argued there was no evidence in the docket - as well as the four statements, one of them unsigned - that the national director of public prosecutions boss, Nomgcobo Jiba, relied on in making her decision to prosecute him and the members of the now disbanded Cato Manor Organised Crime Unit.
Booysen, who has been suspended, had filed papers in the Durban High Court in May in a bid to have the racketeering charges against him and his co-accused set aside.
Booysen and his co-accused were arrested last year and charged with 116 counts, including 28 murders, and accused of operating a death squad under Booysen’s command.
Last month, Jiba, the acting national director of public prosecutions, put up the four statements as part of her answering affidavit opposing Booysen’s attempt.
The statements were by former Cato Manor unit commander Colonel Rajen Aiyer; Aris Danikas – a former police reservist and friend of Booysen who is now living in Greece; and someone named Ndlondlo, who said he was a police informer.
Booysen found Jiba’s decision in her answering affidavit to not detail all the information before her, “alarming” and felt that as an accused person he was entitled to full disclosure of the evidence the State had in its possession, which may be used against him at trial.
Aiyer had made two statements, one of which was made at the end of August last year, after Jiba had approved the prosecution on August 17. His statements dealt with the structures of organised crime since his appointment as the unit commander and work-related issues he had with Booysen.
Booysen said Aiyer’s statements amounted to nothing more than complaints of “office politics and do not provide a shred of evidence/information to support (Jiba’s) authorisations to prosecute (him) on racketeering charges”.
Booysen said Danikas’s statement could not be considered information given under oath, as it was not signed or dated.
“As recently as May 9, 2013 (when the criminal matter came before the court), the State indicated it was attempting to secure the statement of Danikas through mutual legal assistance. Thus, by May 9, the State was not in possession of a statement from Danikas,” read his affidavit.
Booysen also argued that none of the information contained in this statement was relevant or of use to the prosecution, because all of the events described, except for one, fall outside the period of the indictment.
He said Ndlondlo’s statement was full of hearsay, which he felt ought to have been ignored in the absence of first-hand evidence.
Ndlondlo, who has since died, alleged that others paid Booysen for organising hits on certain taxi bosses, and in one instance, was paid R1 million.
Jiba had said Booysen was “actively involved in the commission of offences and their cover-up”.
She had said there had been no proper investigations into the killings, but now there was proof that he had been involved in racketeering.
Booysen, in his replying affidavit, said his attorney had a letter from the attorney representing the taxi bosses who were mentioned by Ndlondlo, and both described Ndlondlo’s allegations as “patently false and devoid of truth”.
He argued that Jiba would not have authorised his prosecution had she properly applied the National Prosecuting Auth-ority Policy directives for the above-mentioned reasons.
Jiba, in her answering affidavit, had argued that from January 2007 to March 2010, Booysen was a provincial commander in charge of the KZN Organised Crime Unit and was thereafter appointed head of the Hawks in the province.
She said during May 2008 to September 2011, members of the SAPS, under his command, allegedly killed members of the KwaMaphumulo Taxi Association, in conflict with the Stanger Taxi Association, as well as civilians and or criminal gangs suspected of being involved in ATM bombings.
“The information before me suggested that these members of the SAPS would, in most of the killings, place a firearm next to the deceased person to create the impression that he or she was armed and had attacked the police by shooting at them or endangering their (police) lives.”
Jiba said the information under oath, placed before her, also indicated that Booysen knew or ought to have known that his subordinates were killing suspects.
Booysen denied the allegations against him and said the State had drawn conclusions “based purely on conjecture”.
He said he was only appointed as the head of the Hawks in March 2010, and was not in direct command of any Organised Crime Unit or any of their sections.
The matter will be set down for hearing before a judge.
Booysen and his co-accused will appear in court again on the criminal charges in Nov-ember, but a trial date cannot be set until after the outcome of his challenge to the racketeering charges.
Daily News