Jiba's charges unconstitutional, judge rules

2014-02-26 20:37
Johan Booysen  (Khaya Ngwenya, City Press)

Johan Booysen (Khaya Ngwenya, City Press)

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Durban - Racketeering charges against suspended KwaZulu-Natal Hawks head Major General  Johan Booysen were set aside by the KwaZulu-Natal High Court in Durban on Wednesday.

Judge Trevor Gorven condemned a decision by former National Prosecuting Authority (NPA) acting head Nomgcobo Jiba to prosecute Booysen, saying the charges did not meet even the barest of minimum requirements.

"Even accepting the least stringent test for rationality imaginable, the decision of the NDPP [national director of public prosecutions, Jiba] does not pass muster," he wrote in his ruling.

"I can conceive of no test for rationality, however relaxed, which could be satisfied by her explanation. The impugned decisions were arbitrary, offend the principle of legality and, therefore, the rule of law and were unconstitutional."

The ruling does not affect other charges against Booysen, who was head of the now-disbanded Cato Manor serious and violent crimes unit.

He had been charged, along with his former unit, of running a criminal enterprise.

Members of the unit are expected to stand trial on a range of charges, including 28 murder counts, later this year.

They allegedly carried out paid hits in the KwaZulu-Natal minibus taxi wars.

Jiba said in her court papers that the unit acted like an organised crime organisation.

Booysen was charged in August 2012 with managing and participating in an enterprise through a pattern of racketeering activity.

He was accused of two murders, unlawful possession of a firearm and ammunition, and defeating or obstructing the course of justice.

No evidence

In his application, Booysen had argued that there was no evidence in police dockets which implicated him, other than statements which referred to him as being at or arriving at the scenes of shootings after they took place.

Gorven said in his judgment the prosecution had conceded that nothing in the dockets implicated Booysen when he heard Booysen's application on 7 February.

Booysen had argued that Jiba lied about having certain statements before her when she decided to prosecute, and could, therefore, not have used them to make her decision.

Gorven said Jiba did not have any material before her that could "rationally authorise" Booysen's prosecution.

He said Jiba had a responsibility as an officer of the court to be accurate with facts and should have explained or corrected any inaccuracies.

Gorven rejected the State's argument that Booysen's application should be adjudicated in Pretoria since the NDPP was based there.

Booysen had argued that since he was facing the charges in the KwaZulu-Natal High Court, his application should be heard there.

The judge said his decision to invalidate the charges did not amount to a finding that Booysen was innocent.

"Setting aside the authorisations and decisions to prosecute also does not mean that fresh authorisations cannot be issued or fresh decisions taken to prosecute if there is a rational basis for these decisions."

Comment could not immediately be obtained from NPA spokesperson Nathi Mncube.

- SAPA
Read more on:    npa  |  hawks  |  johan booysen  |  nomgcobo jiba  |  durban
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