Former KZN DPP Moipone Noko. (@NPA_Prosecutes/X)
Although it is unusual for a national director of public prosecutions (NDPP) to act outside their jurisdiction, that occurred on instruction from the National Prosecuting Authority (NPA) head and there was prima facie evidence to prosecute, former KwaZulu-Natal director of public prosecutions (DPP) advocate Moipone Noko says.
Noko told the Nkabinde inquiry, which is investigating the fitness of South Gauteng DPP Andrew Chauke to hold office, that he was appointed to investigate the misconduct of the Durban organised crime unit, Cato Manor, by then acting NDPP Noncebo Jiba.
Chauke is accused of unlawfully instituting racketeering charges against the unit and its leader, the former KwaZulu-Natal head of the Directorate for Priority Crime Investigation (Hawks) Johan Booysen. He is also accused of acting outside his jurisdiction on a case in KwaZulu-Natal while he being the lead prosecutor in Gauteng.
“My understanding was that the then NDPP had allocated the case to him to oversee and he had appointed a team of prosecutors,” she said.
Noko said she supported Chauke in the prosecution and later took over the case herself.
She said that in August 2012, while Jiba was acting NDPP, Chauke had approached her at her KwaZulu-Natal offices and briefed her on the Cato Manor matter. The presiding officers and prosecution team were from outside the province because the accused were familiar with officers in KwaZulu-Natal.
Noko testified that she and Chauke had met the KwaZulu-Natal judge president to seek permission for a judge from outside the province.
She said she had not questioned why a DPP from another division had been appointed to lead a prosecution outside his jurisdiction.
“My understanding is that there was nothing weird about it.”
She said deputy DPPs were often delegated to assist in other jurisdictions and that the NPA head had the prerogative to assign prosecutors to specific cases.
Noko said Chauke had overseen the matter and regularly provided updates.
“My understanding is that it was at the instance of the NDPP because I wouldn’t think he would, on his own, move from his own jurisdiction and go to another to deal with the matter.”
Noko was unaware of another instance where a DPP had been delegated to another jurisdiction but said she had seen official documentation showing that deputy DPPs and prosecutors were sent to assist in other provinces.
She told the inquiry that she had later learnt the Cato Manor case comprised 23 interconnected dockets and 28 murder charges, including against members of the Cato Manor police unit.
In March 2014, Noko said, she had been invited to the NPA offices by then-acting-NPA-head Mxolisi Nxasana and instructed to take over the case because it fell within her jurisdiction.
“He said since this case is in your jurisdiction, you are the one who is supposed to oversee it and not advocate Chauke. So from now onwards, advocate Chauke must not oversee it anymore and I must take over,” she said.
Noko said she did not know the reasons for the change, adding that different NDPPs had different leadership styles. She noted that when Shaun Abrahams was later appointed as NPA head, he had signed the racketeering certificate against Booysen.
“Verbally and in their prosecution memorandum and other documents and statements, the prosecution team presented to me that a proper case had been made out of the prosecutions of the charged people,” she said.
The racketeering charges against Booysen were later dropped by former NPA head Shamila Batohi. Batohi requested President Cyril Ramaphosa to institute the inquiry alleging Chauke acted illegally and without prima facie evidence.
She said the prosecution of Booysen and the unit was based on allegations that the accused acted unlawfully under the guise of their employment between 2008 and 2011.
Noko said members of the unit would kill a person and then place a firearm next to the body to create the impression that the killing had been justified.
She said 23 dockets were opened relating to 28 killings linked to the Cato Manor unit, describing it as a pattern of illegal activity that included killing without a warrant of arrest.
“The issue here is that the people created an impression at every scene of murder that the deceased people were posing some danger towards them and they allege to have planted some firearms.”
Noko added that the ballistic cartridges had not matched the bullets found at the scenes and none of the police officers involved had been shot.
“That creates an impression that it was not true what the police were saying, that the deceased was shooting at them or their lives were in danger.”
She told the inquiry that self-defence had limits and when the limits were exceeded, the person claiming self-defence became the aggressor.
“All indications point to the fact that firearms were placed there,” she said. “The deceased were shot in a sweeping position, lying down, sitting down, handcuffed.”
Noko said there had been a misunderstanding with the evidence team about the capacity in which she would testify.
“I said I can testify for the commission or for advocate Chauke, but I cannot testify being led by the evidence leader putting out the position that supports the NPA position as far as the Cato Manor case is concerned.”