National Director of Public Prosecutions Shamila Batohi maintained on Wednesday that there was insufficient evidence to charge the former KwaZulu-Natal Hawks head, Maj-Gen Johan Booysen, and members of the Cato Manor organised crime unit with racketeering.
Batohi made this statement as she continued her testimony in the inquiry into South Gauteng Director of Public Prosecutions (DPP) Andrew Chauke’s fitness to hold office.
The inquiry, chaired by retired justice Bess Nkabinde in Pretoria, aims to determine whether Chauke improperly drove the 2012 prosecution of Booysen and members of the Cato Manor unit despite an alleged lack of evidence.
It is also examining allegations that Chauke pushed for racketeering charges against Booysen and the members of the unit.
The state, in charging Booysen, claimed he took part in and managed the operations of a criminal enterprise while leading a specialised unit at the Cato Manor police station.
The remaining five charges accused him, along with officers under his command, of crimes including murder, housebreaking with intent to murder, assault, defeating or obstructing justice, and unlawful possession of firearms and ammunition.
In this case, there is evidence that there were issues relating to the credibility of the witnesses. There was insufficient evidence to prosecute the matter
— Shamila Batohi, National Director of Public Prosecutions
Booysen successfully set aside the racketeering certificate in a review application before the Durban high court in February 2014.
The Nkabinde inquiry will further probe an allegation that Chauke derailed the murder case against former crime intelligence boss Richard Mdluli, despite strong evidence implicating him.
Nkabinde told Batohi that according to the record before the inquiry, her panel had been informed that a number of police officers were found at the scene of several murders. She said these incidents resulted in multiple charges against officers allegedly involved in shootings in which civilians lost their lives.
“In a matter of such public importance, where you would have instances of police officers themselves attesting to affidavits implicating other officers, would that not constitute evidence reasonably sufficient for someone to take a decision to prosecute?” Nkabinde asked.
Nkabinde also asked whether given the public outcry in KwaZulu-Natal, that this would not necessitate enrolling the matter so that it could be ventilated in court.
Batohi replied that the police officers were at the scene of the crimes because, in all of the cases, the deceased were suspects in murder investigations and were shot during operations to arrest them.
Nkabinde asked whether, in a case like this, if a prosecutor decided to prosecute, would it be appropriate for the prosecutor to be charged with misconduct if it later emerged at the end of the trial that the evidence had not been sufficient.
Batohi responded that as long as the prosecutor had correctly assessed and analysed the evidence before him or her, that was what mattered. She said factors to consider included whether state witnesses were credible and whether the evidence was reliable.
“How do you determine credibility at that stage? That is the stage for the judiciary,” Nkabinde asked.
Batohi replied that prosecutors continuously consulted with witnesses and considered these issues.
“In this case, there is evidence that there were issues relating to the credibility of the witnesses. There was insufficient evidence to prosecute the matter,” Batohi said.
Nkabinde noted that even in her affidavit, Batohi referred to documents suggesting there was evidence on which one could prosecute.
“I was asked the question very specifically and I said perhaps ‘no evidence’ is incorrect; there was insufficient evidence to prosecute this matter.
“It is important that when deciding whether to prosecute we take into account issues such as reliability, availability, credibility and admissibility of evidence. A statement is a good starting point, but after that, you must ensure that, as a responsible prosecutor, you apply your mind to all of these factors to decide whether you can in fact rely on the evidence before you,” Batohi said.
Batohi also said all of the underlying dockets, the murder dockets were submitted to the director of public prosecutions in KwaZulu-Natal to consider each individually and decide whether anyone could be charged from this group in the racketeering prosecutions.
“The DPP in KwaZulu-Natal declined to prosecute all of the dockets except one, where the matter proceeded to court and the accused were acquitted.”
Batohi said the NPA’s prosecution policy guidelines gave an indication of what criteria should be considered when assessing whether evidence met the required standards.
She said a prosecutor must have regard to the contents of the case docket as well as any version put forward by the accused. The prosecutor must evaluate such evidence, taking into account all relevant factors, including the strength of the state’s case, whether the evidence was admissible, whether state witnesses were credible, whether the evidence was reliable and the strength of the accused’s case and defence.
Nkabinde asked Batohi to direct the panel to aspects suggestive of the prosecutor not having applied his mind such as failing to take into account relevant factors, failing to distinguish admissible from inadmissible evidence, or failing to assess what was likely to be reliable or unreliable.
Batohi said this required her to go through the evidence very carefully.
Batohi said her understanding was that evidence would also be tendered by another witness who will address the details of the Cato Manor matter.
On Thursday the inquiry is expected to start on the second leg of the investigation into Chauke’s alleged misconduct involving his decision not to charge Mdluli with murder.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.