Johannesburg -
Prosecutions boss Mxolisi Nxasana has clashed with his subordinates over a decision to prefer criminal charges against Hawks chief Lieutenant Anwa Dramat and head of the elite investigations unit in Gauteng, Major-General Shadrack Sibiya.
The Sunday Independent has seen evidence showing that, on March 13, Nxasana received a decision from Gauteng Director of Public Prosecutions, Advocate Sibongile Mzinyathi, to criminally charge Dramat and Sibiya in connection with the illegal rendition of Zimbabweans suspected of crimes in their country.
Nxasana has, however, not acted on the decision.
The delay has led to attacks from some of Nxasana’s subordinates as well as action from the acting head of Hawks, Major-General Mthandazo Ntlemeza, who has written a terse letter to the National Prosecution Authority (NPA) boss, demanding the return of the police docket.
Nxasana had not returned the docket by the time of going to press. Hawks spokesman Hangwani Mulaudzi said: “We will decide next week on what the next step is.”
Mzinyathi decided to prosecute the pair, accused of facilitating the illegal rendition of the Zimbabweans – who were allegedly kidnapped in South Africa and sent to their home country – for defeating the ends of justice and kidnapping.
NPA spokesman Velekhaya Mgobhozi confirmed that the recommendations have been made and “communicated” to Nxasana.
But several police sources, speaking to The Sunday Independent separately, have accused Nxasana of interference.
When asked to explain why Nxasana did not implement Mzinyathi’s decision, as required by the National Prosecutions Act, Mgobhozi responded angrily, before slamming the phone. “The NDPP oversees the decision,” he said.
In terms of the constitution and the NPA Act: “Each DPP is responsible for the decision whether or not to prosecute a person within his or her specific jurisdictional area.”
Mgobhozi said: “He (Nxasana) has looked into the recommendations made and given the docket to the prosecutors under national prosecution services to look into the matter. The prosecutors shall in turn advise the NDPP. The NDPP will then take a decision.” Mgobhozi refused to divulge what the recommendations were “due to the sensitivity of the matter”.
A senior prosecutor from the NPA, who did not want to be named for fear of reprisals, claimed the decision to charge Sibiya and Dramat had not been implemented because officials within the agency were in collusion.
“They are trying to help Dramat. The prosecutors reviewing decision are far junior than Mzinyathi,” said the prosecutor.
“Anyway, Mzinyathi can’t stand up to anyone. He is a coward. He knows he is supposed to inform the SAPS about his decision. He can then tell Nxasana about his decision because this is a high-profile matter. Nxasana does not oversee the decision to prosecute, that’s a lie. He is jumping the gun again,” the prosecutor said.
In his letter to Nxasana, Ntlemeza demanded the Sibiya, Dramat police docket as well as the record of Mzinyathi’s decision to charge the top cops.
Ntlemeza demanded that both the docket and Mzinyathi’s decision should be returned no later than last Friday.
Ntlemeza wrote: “We understand that the DPP has made his recommendations in this matter, which was forwarded to you with the docket on March 13 2015, as he states in his correspondence above. We understand that recommendations to be a decision on whether or not to prosecute.
“We kindly request that you furnish us with our case docket, as well as a copy of the correspondence addressed to you by the DPP setting out his decision, for our consideration and possible implementation.”
Ntlemeza also questioned why the docket and the recommendations were handed to Nxasana.
“While we respect the processes of the NPA, it is unclear to us why the docket was handed to the NDPP in this matter as prosecutorial decisions are made by Directors of Public Prosecutions, nor why did the DPP decide not to inform us about his decision when it is clear that he has made it. We would appreciate if we may get the docket and the DPP decision at your earliest convenience but no later than Friday, March 27 2015,” Ntlemeza said.
Mzinyathi also wrote separately to Nxasana saying: “Please find attached hereto a letter dated March 18, 2015 from the head of the Directorate for Priority Crime Investigation (DPCI), the contents of which are self-explanatory.
“In response to the request contained in the aforementioned letter, I confirm that this office has made our recommendations in this matter and forwarded same to you, together with the docket on March 13, 2015 for your consideration and feedback.”
The controversial rendition saga has led to suspensions of Dramat, Sibiya and Independent Police Investigative Directorate (Ipid) head Robert McBride by Police Minister Nathi Nhleko.
But the court found the suspensions of Sibiya and Dramat were unlawful and unconstitutional. Nhleko is accusing McBride of interference and altering the Ipid report that recommended that Dramat and Sibiya should be charged. The second report exonerated the pair.
This week, SAPS spokesman Solomon Makgale accused the NPA of jumping the gun when they issued summons against Deputy National Director of Public Prosecutions, Nomgcobo Jiba.
The SAPS and the NPA were at loggerheads after the agency announced that summons had to be served on Nxasana as Jiba was nowhere to be found.
He said the issuing of the summons was not done in consultation with the investigating officer.
But Nxasana hit back, accusing National Police Commissioner Riah Phiyega of interference in the matter.
Sunday Independent