- The NPA has abandoned the criminal prosecution of erstwhile Hawks General Jan Mabula and seven other officers.
- Police informer Solomon Nengwane died in their custody in 2006, with allegations swirling that he had been tortured to death.
- The new decision flies in the face of an instruction from the Investigating Directorate that they stand trial.
Controversial former Hawks General Jan Mabula – accused alongside seven other officers of torturing a police informant to death in 2006 – will not be criminally prosecuted.
Instead, a magisterial inquest will be held to test whether the actions of Mabula and his posse led to the death of Solomon Nengwane.
This week, the NPA’s Director of Public Prosecutions in Pretoria, advocate Sibongile Mzinyathi, declined to prosecute the officers based on a lack of evidence.
The new direction on this matter stands in stark contrast to recommendations of Investigating Directorate head Hermione Cronje in January, which called for the officers to stand trial. In an official NPA communiqué on Wednesday, obtained by News24, Mzinyathi instructed that a criminal trial would likely "crumble".
"I decline to prosecute at this stage. A magistrate has been requested to hold a formal inquest," she wrote.
"The senior public prosecutor or an experienced regional court prosecutor must thoroughly question the witnesses…and ensure that the specific aspects dealt with in their statements are thoroughly canvassed."
Upon completion of the inquest, she added, the prosecutor must produce a report dealing with the "prospects of a successful prosecution".
Nengwane, a police informer, had been tracked down by a task team assembled to investigate a high-profile heist – the theft of R14 million from the Benoni police station’s evidence locker in May 2006.
The team, led by Mabula, stand accused of beating Nengwane to death, and then embarking on a wild cover-up, claiming Nengwane had died from an asthma attack while in their custody.
Mabula is seen as an enforcer and has played a role in several politically tainted arrests, including that of former KZN Hawks head Johan Booysen and forensic investigator Paul O’Sullivan. He has close links to fired deputy National Prosecuting Authority boss Nomgcobo Jiba and ex-Crime Intelligence Unit head Richard Mdluli.
On the back of a thorough Independent Police Investigative Directorate (IPID) probe, the National Prosecuting Authority’s top brass in January ordered that Mabula and his crew be criminally charged.
"Although this matter is very serious and warrants prosecution, the nature of the charges does not fall within the ambit of the ID…thus it is returned for prosecution," she said.
The ID had prepared a draft indictment, which drew back the veil on a team of policemen alleged to have gone rogue, with Mabula was at the helm.
"Nengwane was arrested by the task team and taken to Mmakau Police Station in the North West Province where he was interrogated and assaulted. He was suffocated and died," the document reads.
"Mabula arranged that the team members drop Nengwane at Dr George Mukhari Hospital in Ga-Rankuwa for medical attention, alleging that he experienced breathing problems or an asthma attack."
This was the essence of the cover-up, Cronje said, insisting that Mabula and his team had aligned their stories in official police statements. But these, it is claimed, were all lies. Mzinyathi took a different view.
In a letter attached to the decision declining to prosecute, addressed to lead IPID investigator Anthony Sehas, Mzinyathi sets out the case’s shortfalls.
"The deceased [Nengwane] clearly died while in police custody. There is however no objective evidence besides the statements made by the suspects regarding what happened to him and who could have killed or injured him."
"The cause of death due to oxygen deficiency cannot be determined with certainty. Two pathologists found this to be the case. The deceased had two superficial injuries on his upper lip and nose bridge and abrasions on his wrists consistent with cuffing. No investigation was done to ascertain what other than torture by tubing could have caused the superficial injuries to the deceased," she wrote.
Officers had dropped Nengwane’s body at George Mukhari Hospital in the North West, four hours after he was led away from his home in handcuffs.
The police claim Nengwane developed breathing difficulties while just minutes away from the facility, but a doctor who examined him found that rigor mortis had already set in – impossible only minutes after death.
"The state would seek to rely on the statements that the suspects made after the death of the deceased as circumstantial evidence combined with the opinion expressed by the doctor to ask the court to infer that the suspects are responsible for the death," Mzinyathi added.
"Should the statements be ruled inadmissible the entire case will crumble. Even if they are admitted, the inconclusive cause of death, the gap in the chain of custody and the lack of injuries will leave the court doubtful as to what happened to the deceased."
"There is no objective evidence of who was responsible for the death, when the injuries were inflicted and how it was done. There is a strong suspicion without proof," Mzinyathi said.
Attorney’s acting for Mabula and the seven said the State had no evidence on which to rely.
"It is clear that as the case docket stands at the moment, no evidence exists on which the State could base a case against our clients," they said in a letter to News24.
"Depending on the outcome of the inquest, our clients may not be prosecuted at all."
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