FIRST TAKE: Batohi's big call starts reversal of NPA capture

Newly appointed National Director of Public Prosecutions (NDPP) Advocate Shamila Batohi and President Cyril Ramaphosa during the announcement of her appointment at the Union Buildings on November 4, 2018 in Pretoria. (Photo by Gallo Images / Netwerk24 / Felix Dlangamandla)
Newly appointed National Director of Public Prosecutions (NDPP) Advocate Shamila Batohi and President Cyril Ramaphosa during the announcement of her appointment at the Union Buildings on November 4, 2018 in Pretoria. (Photo by Gallo Images / Netwerk24 / Felix Dlangamandla)

The National Prosecuting Authority (NPA) on Tuesday announced that racketeering charges against former KwaZulu-Natal Hawks head General Johan Booysen and his co-accused will be withdrawn.

Six months after taking charge of the crippled institution, National Director of Public Prosecutions Shamila Batohi has made her first big decision attempting to reverse a decade of capture at the institution and restoring its credibility.

The so-called 'death squad'

The racketeering charges against Booysen relate to the so-called "Cato Manor Death Squad".

On August 17, 2012, as acting NDPP, Nomgcobo Jiba authorised the prosecution of Booysen on the "super charge" of racketeering in terms of the Prevention of Organised Crime Act (POCA). Booysen successfully fought this in court and it emerged that Jiba had reached her decision based on questionable affidavits.

Jiba claimed she referred to statements by former Cato Manor unit commander Colonel Rajen Aiyer, Aris Danikas, a former police reservist and friend of Booysen, and a man who claimed he was a police informer. Booysen disputed Jiba's version and said their statements were not in the docket.

This led to perjury charges against her.

Then on February 16, 2016, NDPP Shaun Abrahams again authorised the prosecution of Booysen et. al. on charges of running a criminal enterprise.

Booysen has always been outspoken about the fact that he believed that these attempts to charge him for racketeering were politically motivated. He essentially called Jiba a liar at the Mokgoro inquiry, which was held to establish Jiba's fitness to hold office.

"She instead abrogated her responsibilities and abused her position to authorise my prosecutions for nefarious reasons," said Booysen. "She lied as to what was before her when she took the decision and what witnesses really said in their statements. In the process, she has brought the name of the NPA into disrepute," said Booysen.

In his ruling on Booysen's High Court application to review the decision to prosecute, Judge Trevor Gorven was scathing of Jiba.

"Even accepting the least stringent test for rationality imaginable, the decision of the NDPP does not pass muster. 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."

Jiba told the Mokgoro inquiry that she was not acting with an ulterior purpose to prosecute Booysen and that the narrative that he was charged in order to remove him from politically sensitive corruption investigations was totally false. 

"I have explained during my evidence in chief, the nature of the evidence that was presented before me that led me into instituting a prosecution in terms of section 2, I can tell you right now and I can promise you, chairperson, that that narrative is extremely false."

A proxy fight for control of the NPA

The prosecution of Booysen was seen as a proxy fight for control of the NPA by a faction loyal to Jiba and, by implication, former president Jacob Zuma, as well as those behind the state capture project. Many viewed the case as a travesty of justice.

So when Batohi was appointed by President Cyril Ramaphosa and moved into her Silverton office in February this year, the racketeering case against Booysen would have been one of the key matters on her desk.

She appointed a panel comprising several of her lieutenants and asked them to review the docket. The panel finalised its review and submitted a report finding that the authorisations by both Jiba and Abrahams had been invalid.

The announcement of today's decision comes at a time when the South African public at large is desperate for some kind of indication from Batohi that she is on top of the state capture chaos she inherited. We are waiting for the announcement of a prosecution of a high-profile politician to give us a signal that the wheels of justice are in motion. She has appointed Advocate Hermione Cronje to head up the special investigating directorate that is building state capture cases but that process is going to take time and a lot of it. Investigations need to be done, evidence gathered and statements taken.

More decisions pending

Withdrawing charges is far quicker than the process of bringing prosecutions against accused. So in today's announcement Batohi has achieved a quick win – going for the low hanging fruit with a high impact decision. It shows that the process of reversing the capture of the NPA is underway.

There are other significant cases she will also be reviewing that could have considerable ramifications in both the public and political realms.

Most prominent of those is the SARS "rogue unit" case involving Project Sunday Evenings. Three former SARS officials accused of being part of a project to bug the offices of the NPA in 2007 agreed to a request by prosecutors to postpone their case earlier this year. This was to allow Batohi time to review the decision taken to prosecute Ivan Pillay, Johann van Loggerenberg and Andries Janse van Rensburg.

In light of the Public Protector's report released on this very case on Friday, Batohi will have to tread carefully on this one. Inevitably her decision is going to be viewed through a political lens as well as a legal one.

That decision is still to come but for now, Batohi will be hoping that her statement on the Booysen case will be enough to keep South Africans confident that the NPA is in the process of restoring law and order.

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