NPA appeals ruling to clear Hawks boss charges

The National Prosecuting Authority is set to appeal a recent Durban High Court decision to set aside all charges against suspended KwaZulu-Natal Hawks head Maj-Gen Johan Booysen.

Booysen's lawyer Carl van der Merwe, speaking from Cape Town on Sunday, said that the NPA had lodged a notice seeking leave to appeal against Judge Trevor Gorven's decision to have all charges against Booysen dropped.

Van der Merwe said that the notice had been lodged with the Durban High Court on Thursday.

"I have been in Cape Town. I have not seen the appeal, but I will be back in Durban on Tuesday and can then look at it," he said.

Gorven's judgement, handed down at the end of February, condemned a decision by then acting national director of public prosecutions 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."

Booysen, who was head of the now-disbanded Cato Manor serious and violent crimes unit, 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.

Apart from the racketeering charges, Booysen was accused of two murders, unlawful possession of a firearm and ammunition, and defeating or obstructing the course of justice.

Gorven said in his judgment the prosecution had conceded that nothing in the dockets implicated Booysen.

Booysen's application to have the charges set aside was argued in the Durban High Court on February 7 and Gorven handed down his judgment on February 26.

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

The judge said his decision to invalidate the charges did not amount to a finding that Booysen was innocent and his ruling did not preclude Booysen from being charged again.

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

If Gorven rejects the NPA's application for leave to appeal, the NPA can then petition the Supreme Court of Appeal.