Durban - Nomgcobo Jiba is claiming legal privilege on a memorandum on which she based her decision to authorise the prosecution on racketeering charges of the Cato Manor organised crime policemen accused of operating a hit squad.
Jiba – the acting national director of public prosecutions at the time – says this is because it contains an analysis of facts and strategy relating to the case.
But the policemen say it contains nothing of the sort and the real reason she does not want it disclosed – as is their right under the constitution – is that it would prove that she had not applied her mind properly and had simply “rubber-stamped” the document.
The men are due to appear in the Durban High Court again next week, by which time, it is hoped, a court application to compel Jiba to disclose the record of her decision to prosecute them, so that it can be reviewed, will have been finalised. But the issue of the documents is far from resolved.
In their court application, the suspended policemen say there is no suggestion of any racketeering offences in the voluminous documentation they have been given by the State for trial preparation.
In a similar application launched by KZN Hawks head Johan Booysen, Jiba also declined to produce the record of her decision but said in an affidavit that she had considered “information under oath and evidence in the dockets”.
Her decision was set aside by Judge Trevor Gorven, who said she had not told the truth, and charges against Booysen were later withdrawn.
Earlier this year, the policemen still facing charges requested the record through their attorney, but were told the documents were privileged because they contained “investigation techniques, trial strategy, informer sources and the State’s potential arguments on technical issues”.
The men then launched the formal court application for the documents.
In response, Jiba provided seven documents including pages of the indictment and applications for centralisation and consolidation of charges.
But she withheld the one they wanted – the memo dated August 15, 2012, which dealt with the racketeering certificate – and another undated document of presentation notes from the prosecution team to her. The former, she said, contained an “analysis of facts and strategy” and the latter, the merits of the case.
The policemen have now gone back to court to compel her to at least deliver the documents to the registrar with “any sensitive portions redacted”.
Rubendran Naidoo, who deposed to the affidavit, said Colonel Marthinus Botha, who was involved in the now-abandoned criminal investigation against Jiba for her handling of the Booysen matter, had confirmed he had seen two documents, dated July 2012 and August 2012, requesting authorisation for the racketeering charges.
He confirmed that both lacked any detail of how each of the accused were party to a pattern of racketeering.
“They both contain bald statements without any specification as to what we each did,” Naidoo said.
“According to Botha, they are essentially a repetition of the general preamble in the indictment and a list of charges.”
Naidoo said it was impossible within the given time frame for Jiba to have read the massive docket, and neither of the memorandums “would have taken her one step closer to making a rational and informed decision to authorise our prosecution”.
The matter has now been set down for November.
The NPA did not respond to requests for comment.
The Mercury