Taxpayers are going to pay a heavy price for the political targeting of the Cato Manor organised crime unit and Hawks head Maj-Gen Johan Booysen.
The first of dozens of claims by the police officers, who were arrested but then cleared on allegations that they operated a “death squad”, was set to get under way in the Durban high court on Monday.
However, state legal representatives made an offer to Capt Eugene van Tonder, which they insisted remains confidential — paving the way for similar payouts to the other 29 officers, including then provincial head of the Hawks Booysen, who were arrested in 2012 during former president Jacob Zuma’s “state capture” regime.
They appeared in court dozens of times before the charges were ultimately withdrawn in 2019, after several damning reports which concluded that the arrests were contrived, the charges bogus and the prosecutions malicious.
They then all individually submitted claims for damages against the police and National Prosecuting Authority.
Booysen, who has subsequently retired, is claiming more than R10m.
So far, dates have been allocated for seven matters. Van Tonder’s case was the first. Booysen’s case has been set down to be heard over three days in November and the others are scheduled to run on separate dates until April next year.
However, in pre-trial proceedings, the state indicated it has “no witnesses” to counter the allegations and there are indications it will attempt to settle all of them. This means that if the trials continue, it will only be to determine what damages must be paid, should there be no agreement on that issue.
Booysen was arrested twice. In 2014, he challenged his initial arrest, and Durban high court judge Trevor Gorven set aside the charges against him, ruling they were unconstitutional and unlawful.
Gorven said there was no evidence to justify the decision by then National Director of Public Prosecutions (NDPP) advocate Nomgcobo Jiba to prosecute him under racketeering laws.
He was then re-arrested in 2016 under the reign of NDPP Shaun Abrahams based on the same “evidence”.
Booysen and the other accused took this decision on review.
Advocate Shamila Batohi was then appointed as the NDPP, and she put together a team to review the case. The team produced a report, under the hand of advocate Rodney De Kock, essentially finding that SAPS investigators and NPA prosecutors connived to conjure up fabricated cases against Booysen and the other police officers.
On July 19 2019 all the charges were withdrawn against all of the accused.
In their damages claims, the police officers say the arrests, searches and detention were unlawful and the prosecution was malicious.
Booysen told Sunday Times: “The state has been procrastinating and delaying proceedings, to the extent that the plaintiffs had to obtain a compelling order, with costs, against the state, to adhere to the rules of the court.”
In the interim, Jiba had been dismissed by Cyril Ramaphosa for her role in the malicious prosecution.
One of the lead prosecutors, advocate Andrew Chauke, was also suspended in July this year related to his role in the prosecution. A commission of inquiry headed by justice Bess Nkabinde has been set up to establish whether he is fit to remain in office.
Another lead prosecutor, advocate Sello Maema, who has since retired, is facing possible criminal charges for fabricating evidence in a prosecution memorandum relating to the malicious prosecution.
If any of the trials go ahead, Gorven’s judgment and the De Kock report are expected to take centre stage at the civil trials.
The De Kock team were tasked by Batohi to look at the validity and appropriateness of the decisions by Jiba and Abrahams to sign off on the racketeering charges on allegations covered in 23 dockets that the accused unlawfully killed 28 people and that they were involved in a “criminal enterprise that killed for reward and financial gain”.
However, the report found that the evidence of three so-called key witnesses was hearsay and could never be admitted at trial.
There were also serious “insurmountable” credibility issues, particularly relating to (former) policeman Rajen Aiyer and police reservist Aris Danikas.
It was also absurd to suggest that “a manager of a criminal enterprise” would involve himself in killings for a mere R10,000 reward, as alleged in the indictment, that some officers received, the report said.
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