Prosecutions head lied, Hawks boss’s lawyer claims in court

2014-02-07 14:42

Judgment has been reserved in the application by suspended KwaZulu-Natal Hawks boss General Johan Booysen to have his racketeering prosecution set aside in the Durban High Court.

The application, brought forward by Booysen several months ago, was presided over by Judge Trevor Gorven. Booysen’s counsel, Anton Katz SC, today attacked the decision by then acting national director of public prosecutions (NDPP) Nomgcobo Jiba to charge him in terms of the Prevention of Organised Crime Act (POCA) as “insanity”.

Katz told the court that, in her replying affidavit, Jiba confirmed that she had based her decision to prosecute Booysen in August 2012 on a witness statement, which she had only received after Booysen had been charged.

This, Katz said, along with a refusal to accept the court’s authority to review her decision, showed that Jiba – who was replaced by recently appointed NDPP Mxolisi Nxasana – believe “she is above the law”.

Katz said Jiba had acted in a manner which was “so bold and so abusive” that the judge could not “tolerate” her behaviour and was bound to intervene and “protect the rule of law”.

Jiba, he said, had been “mendacious” when in her affidavit to the court she said she had relied, in part, on the statement of a dead police informer. She had “lied” to the court about the evidence she based her decision on and “acted on a statement that didn’t exist.”

The court, Katz said, needed to intervene and review her decision to issue a certificate for prosecuting Booysen, who is charged with racketeering over a series of allegedly unlawful killings of suspects by members of the Cato Manor Serious and Violent Crime Unit, who fell under his ultimate command. The unit has been disbanded and its members are now facing murder, robbery and other charges in a Durban High Court trial, which will get under way once the Booysen judgment is delivered. A separate challenge to the POCA itself at the Constitutional Court by Amigos corruption accused Gaston Savoi will also have to be heard before the murder trial proceeds.

The entire process around Jiba’s issuing of the racketeering certificate was, Katz said, flawed.

“She is lying to the court about the process,’’ he said.

Advocate Michael Hodes, SC, for the state argued that Jiba had acted within her rights and that Booysen’s application was “inappropriate” and an attempt by him to delay his prosecution.

The correct forum for a decision on the certificate would be the trial court, he said.

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