Mxolisi Nxasana stepped into a political minefield on his appointment by President Jacob Zuma to the post of the National Director of Public Prosecutions in 2013. Controversial prosecutorial decisions that had been taken on high-profile cases meant he inherited a deeply divided legal team at the National Prosecuting Authority. In the case of the ‘Amigos’ fraud and racketeering trial, it has now led to a large civil claim for damages. By GLYNNIS UNDERHILL.
When the former acting head of the KwaZulu-Natal Health Department, Dr Yolisa Mbele, entered the dock of the Pietermartizburg regional court on January 20 2012, it was as Accused No 8 in the R144-million ‘Amigos’ corruption and racketeering trial. Yet seven months later, the criminal charges against Mbele and others, including ANC heavyweights Mike Mabuyakhulu and Peggy Nkonyeni, were withdrawn in court, without explanation. Daily Maverick can now reveal that Mbele has launched a civil claim for damages against the National Prosecuting Authority for R7.4 million.
While Mbele’s civil case is proceeding quietly behind the scenes, judgment is still awaited on the Democratic Alliance’s application to try to force the National Prosecuting Authority to disclose why it dropped criminal charges against Mabuyakhulu and Nkonyeni. The matter was heard by Judge Rashid Vahed in the KwaZulu-Natal high court in Pietermaritzburg in October last year, but there is no indication when this judgment will finally be handed down.
Legal staff at the National Prosecuting Authority say it can ill-afford the civil suits now piling up against it. Two years ago, prosecuting authority bosses told Parliament it had run out of cash and austerity measures were being implemented to try to help salvage its ailing financial position.
Today, say concerned legal staff, the National Prosecuting Authority risks being “bled dry” by civil claims lodged in response to a number of controversial prosecutorial decisions taken in various cases.
The high-profile criminal action against Uruguayan businessman Gaston Savoi revolves around R1 million paid to the ANC in 2007, and the case earned its catchy media tag as some of the 23 accused sent text messages calling each other ‘Amigo’. Savoi is charged with bribing ANC and government officials in KwaZulu-Natal and Northern Cape to secure contacts for the sale of water purification systems and oxygen machines by his company Intaka to health and local government departments, at massively inflated prices. His legal team insists the R1 million was a “donation” to the ANC, and he is innocent of the charges against him.
Following the withdrawal of the charges against Mbele, Mabuyakhulu and Nkonyeni and other accused, Savoi’s lawyers have brought an application for a permanent stay of prosecution. And legal staff at the National Prosecuting Authority fear there could be further civil claims emanating from this case, should Mbele be successful in her action.
National Prosecuting Authority spokesperson Velekhaya Mgobhozi confirmed a damages claim from Mbele had been received, and the prosecuting body is opposing the matter. The claim is currently at discovery stage, he says, and both parties are exchanging documents.
“After that there will be a pre-trial conference,” Mgobhozi says. “It will be heard at the Pietermaritzburg high court and no date has been given yet.”
Other recent damages claims against the State include one of R10.5 million from KwaZulu-Natal Hawks head Major General Johan Booysen, following his arrest and prosecution with members of the Cato Manor organised crime unit over allegations they were operating a “death squad“. Under the leadership of the now embattled prosecutions boss Mxolisi Nxasana, the National Prosecuting Authority took the unprecedented step of taking Deputy National Director of Public Prosecutions Nomgcobo Jiba to court last month on two counts of fraud and one of perjury, relating to her failed attempts to prosecute Booysen.
Another civil claim recently launched involves the former judge president of KwaZulu-Natal Chiman Patel, who is suing the State for R3 million in damages for malicious prosecution on what he claims are false charges.
The ‘Amigos’ case has been steeped in controversy from the start. When the National Prosecuting Authority withdrew the charges against the top ANC figures in this case, its legal staff were not surprised, as the highly-respected advocate Simphiwe Mlotshwa had suddenly been replaced in his job as acting KwaZulu-Natal prosecutions head by advocate Moipone Noko. While the National Prosecuting Authority denied it, staff claimed Mlotshwa had been removed because he would not bow to pressure to drop the charges against Mabuyakhulu and Nkonyeni, both seen as firm allies of President Jacob Zuma.
The National Prosecuting Authority now faces further uncertainly, not knowing who might replace Nxasana if he accepts a settlement, after a commission of inquiry set up by Zuma to look into his fitness for office was unexpectedly shut down last week. The prime concern among some senior legal staff is what will happen to the cases that have recently been placed under review while Nxasana has been at the helm.
These prominent cases include some involving businessman Thoshan Panday and the South African Police Service’s Colonel Navin Madhoe. The high-flying Panday has been linked to Zuma’s son Edward, who allegedly visited Booysen and asked him to release R15-million of Panday’s money that had been frozen during the police investigation. At the time, Booysen claimed the younger Zuma told him he was a silent partner in Panday’s business and had invested R900,000.
Panday and Madhoe were arrested following an alleged sting operation captured on videotape, and the two men were accused of trying to bribe Booysen with R2 million to quash investigations into allegations that they ran a R6-million police accommodation scam during the 2010 football World Cup. The bribery case was quashed by Noko, and an advocate in her office declined to prosecute the accommodation scam.
However, Nxasana recently approved the decision to assign State prosecutor Gerrie Nel, who was instrumental in putting Paralympian Oscar Pistorius behind bars, the task of reviewing the cases involving Panday. The next step would be for Nel to invite Panday’s legal team to make representations on the cases, but with Nxasana’s job on the line, apparently little progress has been made.
After all, say those close to the case, whoever succeeds Nxasana if he goes could decide to put a brake on proceedings.
Should the next person appointed to the top prosecutions job be pliable, unlike Nxasana, some of the National Prosecuting Authority legal staff predict some of the high-profile cases, including the ‘Amigos’ and the Panday cases, could simply disappear, forever. DM
Photo: Gaston Savoi (By Craig McKune, working forAmabhungane).
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