Shaun Abrahams calls prosecutor in court to answer a complaint

2017-07-27 17:09
Shaun Abrahams (File, Nico Gous, Netwerk24)

Shaun Abrahams (File, Nico Gous, Netwerk24)

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Johannesburg - National Director of Public Prosecutions Shaun Abrahams has emerged.

It wasn’t where you would think to find him. Not at any type of press conference, or in any actual decision to prosecute a high profile case.

His appearance wasn’t even in person.

Instead it was in an email and a phone call to a senior prosecutor in the Priority Crimes Litigation Unit (PCLU) ordering him to the National Prosecuting Authority head office for an urgent meeting over a serious complaint it had received into the prosecutor’s fitness to hold office.

The prosecutor was Advocate Jabulani Mlotshwa and the unit he works for has previously been accused of delving into politically motivated cases. The PCLU is the same unit which attempted to charge ex Finance Minister Pravin Gordhan and it is Mlotshwa who is prosecuting Julius Malema.

READ: Why is the same NPA unit charging Gordhan and Malema?

It is also the unit that is prosecuting forensic investigator Paul O’Sullivan on a number of charges. Their first case against O’Sullivan, for allegedly Contravening Section 26 (B) of the Citizenship Act for entering the country on his Irish passport, was dismissed in the Kempton Park court in June in a scathing judgment by Magistrate Wynand Nel who said the state’s witnesses were poor and the police’s actions worrying.

READ: Paul O'Sullivan case dismissed, witnesses poor, says magistrate

The investigator has maintained from the start that he believes he is being maliciously prosecuted as a form of punishment for his work in exposing corruption, particularly of senior police officers.

Among the cases O’Sullivan is facing is a fraud case in the Randburg Magistrate’s Court which is being prosecuted by Mlotshwa.

‘There is no case left’

The trial was underway this week, but it was interrupted numerous times: by the phone call by Abrahams to Mlotshwa, followed by an email handed into the court by Abrahams personal assistant, attempts by Mlotshwa to have his only witness in the case declared a hostile witness and finally an application to have the Magistrate recuse herself from the case for not being objective, among others.

According to the state’s case O’Sullivan in 2014 allegedly committed fraud when he interviewed a suspect, Alice Johnston, and allegedly told her he was a criminologist and would get her a suspended sentence if she confessed to having committed certain crimes.

Johnson allegedly said in her statement that O’Sullivan intimidated her during the interview, but after a video of the interview was shown in court this week Johnson on the stand said in hindsight she wished she had not laid the complaint against O’Sullivan. She said at the time she felt she was being brow beaten into submitting to something she had not done.

“Every time I tried to speak I was interrupted. I don’t handle confrontation well… I felt at the time he was shouting, but the video shows he was not shouting but was confrontational. Firm,” Johnson said.

Mlotshwa said her evidence was deviating from her original statement and he wanted Johnson declared a hostile witness.

Johnson was the only witness called by the state said defence advocate Zirk Pansegrouw.

"His only witness is not credible... There is no case left. He (Mlotshwa) is putting forward arguments that are bad in law," said Pansegrouw.

Magistrate Pretorius said she did not view Johnson as a hostile witness.

“Sir, after seeing this video recording are you sure you want to continue in this way,” the Magistrate asked Mlotshwa.

“I have been told to carry on,” Mlotshwa said.

“Told? Are you being instructed what to do?” the magistrate asked.

Hostile witness

Earlier Mlotshwa stopped court proceedings because his phone had rung. It was Abrahams on the other end of the line. He has been made aware of a “serious complaint” O’Sullivan had made against Mlotshwa and was calling the prosecutor to answer to it.

When Mlotshwa returned to court he asked for a postponement which would be for three months to attend an urgent meeting with Abrahams to discuss the allegations made against him.

The Magistrate asked for proof that Mlotshwa had been told to stop the case in order to see his boss.

An hour later he produced an email from Helena Swart, the executive personal assistant of the NDPP, sent to Anne-Marie Smith and Mlotshwa.

It said, “The office of the NDPP has received a complaint from Mr Paul O’Sullivan about the fitness or otherwise of Adv Mlotshwa to act as a prosecutor. Please inform him that the NDPP requires an urgent meeting with him as soon as possible in this regard”.

“My competency and credentials as a prosecutor is being questioned,” Mlotshwa said when asking for the postponement.

Pretorius said the email did not say that the case had to stand down in order for Mlotshwa to see his boss. She said the witness had been in the box for a long time and it appeared the complaint against Mlotshwa had a long history.

“This email doesn’t assist the court in anyway,” Pretorius said indicating that the prosecutions office could have assigned a different prosecutor to the case.

She ordered that the case go ahead after which Mlotshwa asked that Johnson be called a hostile witness, mentioning perjury in his argument.

Johnson sat in the dock and weeped.

Delaying tactics

After Pretorius refused to call Johnson a hostile witness Mlotshwa then asked that the Magistrate recuse herself.   

An increasingly frustrated Pretorius dismissed Mlotshwa’s application, in a similar way Magistrate Wynand Nel did in the Kempton Park Court when Mlotshwa brought the same recusal application against him in the passport case.

READ: Magistrate in O'Sullivan trial asked to recuse himself

Pretorius said the state appeared to be employing delaying tactics.

“The court can’t please everyone,” the Magistrate said. “A criminal trial is not a game. The court has tried its best to be fair to all and that includes to the witness. The court can’t make a ruling that suits all parties. You can’t be like a naughty child whose sweets were taken away.”

After she delivered her judgment Mlotshwa said he wanted to take Pretorius’s judgment on review.

This will take place on August 3.

In the complaint which Mlotshwa has to discuss with Abrahams, O’Sullivan has made a number of allegations. In June he sent an email to Abrahams and IPID head Robert McBride, as well as the NPA’s ethics line.

He alleges that Advocate Mlotshwa used to practice as an attorney in KZN under Mlotshwa Attorneys, but he was allegedly struck off the roll of attorneys for dishonesty, in 2000. He has not practiced as an attorney since, the complaint said.  

“I write this to enquire if this was disclosed when Mlotshwa applied for employment with the NPA. If it was disclosed, then I am left wondering on what basis a person with a clear history of moral turpitude, and lack of ethics, can be considered a fit and proper person to be a prosecutor,” O'Sullivan wrote.  

‘Never surrender’

O’Sullivan alleges that Mlotshwa along with the Hawks were conspiring to bring charges against him in order to silence him.

“I shall never surrender to such institutionalized and systemic corruption, as has become the norm in South Africa in the last few years,” O’Sullivan said. 

He has previously stated in a legal letter sent by Afriforum that a Hawks officer, had “unlawfully” obtained a search warrant and seized O’Sullivan’s computer on April 15, 2015. The High Court set aside the warrant and ordered any copies made of his computer be destroyed.

But O’Sullivan is convinced the officer “not only failed to comply with the order, but he also actively harvested the unlawful copy he had of our client’s computer”.

“He then systematically made contact with various persons whom he could see that our client had investigated for one or other form of criminal offence”.

Some of the people the officer contacted - including a military police officer, a policeman and private investigators - have signed affidavits stating that the Hawks officer tried to extort information on O’Sullivan from them by threatening to arrest them. All the affidavits were attached to the complaint against Mlotshwa.

O’Sullivan said the Hawks along with Mlotshwa threatened many people into giving false evidence against him.

Spokesperson for the National Prosecuting Authority Luvuyo Mfaku said that Mlotshwa made a full disclosure when he joined the Asset Forfeiture Unit (AFU) about his removal as an attorney.

“Willie Hofmeyr, the then Head of AFU investigated the circumstances relating to his removal from the roll of attorneys. He also made a full disclosure to the Law Society which re-enrolled him as an attorney on 9/12/2005 before he joined the NPA,” Mfaku said.

Read more on:    npa  |  paul o'sullivan  |  shaun abrahams

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