Suspended KwaZulu-Natal Hawks commander Johan Booysen has launched a devastating legal attack on the national director of public prosecutions (NDPP), Shaun Abrahams, accusing him of “a clear abuse of prosecutorial power”.
In papers lodged in the Pietermaritzburg high court on Wednesday, Booysen alleges that Abrahams’s decisions to reauthorise racketeering charges against Booysen and 17 other policemen “are 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”.
Booysen argues that he has been targeted by the police and the NPA because of his sustained attempts to investigate senior members of the police, including provincial commissioner Mmamonnye Ngobeni and politically connected businessperson Thoshan Panday.
He says the other accused have been drawn into the attempts to discredit him for doing his job: “There is no basis for racketeering charges against any of us.”
Booysen’s application calls for the charges to be set aside, for the conduct of the NPA to be declared an abuse of power, and for an order interdicting new racketeering charges in the absence of “new, credible evidence”.
The NPA is certain to oppose the application but Booysen has previously overturned the same charges in court. In 2014, Judge Trevor Gorven delivered a scathing ruling that found that then acting NDPP Nomgcobo Jiba’s decision to approve charging Booysen was irrational, given that it was unsupported by any admissible evidence.
Abrahams purported to reauthorise the charges in February this year, a move Booysen argues was cynical and illegal, given that it was based on exactly the same facts.
Booysen was originally charged with racketeering under the Prevention of Organised Crime Act in terms of authorisations issued by Jiba in 2012.
The charges stemmed from the activities of the Cato Manor Serious and Violent Crime Unit, one of four organised crime units that reported to Booysen.
On December 11 2011, the Sunday Times published an article claiming that the Cato Manor unit was a “death squad” that had killed suspected criminals and innocent civilians and then attempted to justify the murders by planting guns near the bodies.
The article also alleged that Booysen was complicit in the actions of the supposed death squad. The article emerged shortly after the then police commissioner, Bheki Cele, had been suspended and there was a subterranean battle going on for control of the police, particularly crime intelligence under its then head, Richard Mdluli, who portrayed himself as a loyal servant of President Jacob Zuma.
Booysen was regarded as an ally of Cele. The allegations elicited an immediate high-level response. Then minister of police Nathi Mthethwa got involved and a special task team was established to investigate the Cato Manor unit. That led to Booysen’s suspension on February 12 2012 — the first of a series of repeated suspensions he has successfully challenged — and his subsequent arrest on racketeering charges in August 2012, with members of the Cato Manor unit.
Because of its sweeping provisions aimed at netting a range of players in an organised criminal enterprise, a racketeering prosecution requires the authorisation of the NDPP.
This, Booysen notes, is because lawmakers recognised the legislation was open to abuse and the measure was seen as providing a check. Instead, Booysen argues, Jiba and Abrahams have abused their powers to mount politically motivated charges.
To back up his case, Booysen sets out why he believes he became a political target — and how the top management of the NPA and the police have repeatedly misused legal processes to sideline him.
“During March 2010, the Hawks (under my direction) commenced an investigation into procurement irregularities concerning SAPS [South African P o l i c e S e r v i c e ] accommodation,” Booysen says. “The initial investigation revealed possible corruption involving Colonel Navin Madhoe, and a businessman, Mr Thoshan Panday.
“At that point of the investigation there were attempts by [provincial commissioner] Ngobeni to interfere with the investigation. She initially told me to halt my investigation. I continued on the instructions of [then Hawks head Anwa] Dramat and [then national commissioner] Cele.
“On 15 June 2010, Lieutenant General Ngobeni summoned me to her office and introduced me to the suspect Mr Panday and his legal representatives. She instructed me to investigate the colonel who was investigating Panday.”
Ngobeni has consistently claimed she was cleared of wrongdoing because the NPA declined to prosecute her over allegations that she had a corrupt relationship with Panday, who is regarded as close to the Zuma family.
Booysen claims that Madhoe also attempted to pressure him to compromise the investigation. “He showed me some photographs from the Cato Manor [unit] database which he claimed would cause me difficulties. I was not interested in his efforts and was not perturbed by the photographs. He later tried to bribe me by paying me R2-million. I had him arrested for bribery and he was subsequently suspended. Later, Mr Panday was also arrested in connection with the investigation.”
Booysen claims it was these same photographs that later turned up in the Sunday Times. “The inescapable conclusion that I draw from these events is that the charges against me, including the current authorisation, are a result of the [Panday] investigation, and my refusal to compromise its integrity.”
All charges against Panday and Madhoe were subsequently withdrawn in questionable circumstances. The former NDPP, Mxolisi Nxasana, was in the process of reviewing the withdrawals when he was bundled out of office.
Booysen asserts that in the majority of cases there is no direct evidence linking any of the accused to the offences underlying the racketeering charges, notwithstanding the fact that 28 criminal suspects were shot dead in 23 incidents over a period of 41 months.
He notes: “The applicants maintain that their conduct was at all times lawful … but the racketeering charge is designed to tie separate instances of justifiable use of force into a ‘pattern’ of criminal activity. Whatever the merits of the underlying or predicate offences, there is no merit to the claim that they were committed by an organised criminal enterprise.”
Booysen recounts his challenge to the Jiba authorisation and how Gorven concluded that “none of the information on which [Jiba] says she relied linked Mr Booysen to the offences in question … I can conceive of no test for rationality, however relaxed, which could be satisfied by her explanation.”
Booysen also accused Jiba of lying to the court, an accusation that Gorven noted Jiba did not choose to rebut.
It was this accusation that formed the basis of perjury charges against Jiba, later controversially withdrawn under Abrahams’s watch. The charges were withdrawn, Booysen says, contrary to the advice of the prosecutors assigned to the matter.
Booysen says Jiba’s conduct in his matter forms part of two ongoing applications to have her removed from office, one led by the General Council of the Bar, another by the Democratic Alliance.
The Abrahams authorisations, he charges, “are an extension of this prosecutorial misconduct”.
Setting out why this is so, Booysen says, following his successful challenge to Jiba’s racketeering decision, the other Cato Manor accused in June last year launched a similar joint application, based on the argument that Jiba’s decisions in their case were irrational and in bad faith.
Instead of offering a reply to this application, Booysen says the state attorney wrote in March this year stating that the authorisations had been “reissued” by Abrahams and therefore asking that the challenge to the Jiba earlier decisions be withdrawn.
Abrahams later purported to officially withdraw the Jiba authorisations.
Booysen argues that the Abrahams authorisations are substantively identical to the Jiba authorisations and must therefore face the same fate.
Booysen claims: “The applicants, and particularly myself, have been the subject of a pattern of attempts to frame us for wrongdoing without any evidence. The [Prevention of Organised Crime Act] charges in particular are a brazen and disingenuous attempt to manufacture a criminal charge against us without any factual basis.”
Booysen argues that it is improper for Abrahams to undermine the legitimacy and finality of Gorven’s judgment by making the same decision a court has already declared to be unlawful.
“It is a plain abuse of power … The NDPP could only be acting mala fide and for ulterior motives. It is part of the same pattern of unlawful activity by the NPA and SAPS in [an] attempt to silence me, presumably to protect people from legitimate investigation.”