Johannesburg - The Kempton Park Magistrate's Court has dismissed the case against investigator Paul O'Sullivan for using a foreign passport to leave and enter the country.
The forensic investigator was arrested in April 2016, dragged off a plane set to take off for London, and detained in the Pretoria jail in what he has labelled torturous conditions, on the charges.
O’Sullivan on Friday labelled the six charges brought against him as malicious prosecution after he opened a case of corruption with the Independent Police Investigative Directorate (IPID) against now ousted Acting Police Commissioner Lieutenant-General Khomotso Phahlane.
He said he intended bringing a civil suit against the state for R100m.
The charges under to Section 26(B) of the South African Citizen Act, in this case refers to six incidents between March 2015 and February 2016 when O’Sullivan exited and entered the country on his Irish passport.
Using the foreign passport allegedly contravened the act.
This was at the height of alleged assassination attempts against him by Czech criminal Radovan Krejcir and O’Sullivan’s lawyers told the court that the reason why he used this passport was in order to avoid detection by Krejcir and the corrupt police officers in his employ.
O’Sullivan was the first person in the country to ever be charged with the offence.
As soon as the State had closed its case O’Sullivan’s advocate Barry Roux applied for a section 174 application to have the case discharged from court.
Magistrate Wynand Nel dismissed the State’s case saying the witnesses were very poor “for want of a better word” and that Roux “literally wiped the floor with the witnesses” during cross examination.
In describing O’Sullivan’s arrest Nel said he could not understand why the investigator had been driven to Pretoria police station and then to Kempton Park.
“Why Mr O’Sullivan was taken to Pretoria police station is beyond my understanding and only the police officers will know,” Nel said.
He also said the behaviour and demeanour of the witnesses was also a matter of concern for the court.
He referred to the conduct of the investigating officer involved as very worrying.
The magistrate said O’Sullivan’s defence that he was not aware he was committing an offence and that he needed to hide where he was going from Krejcir was a good one.
“No-one was ever charged with it (Section 26(B)) in terms of this specific article. Some of the witnesses did not even know of the existence of the offence before the trial,” Nel said.
“The accused did not have the intention to act unlawfully. He had to protect himself from the known threats against his life.”
Nel said that threats from Krejcir, a man who is already convicted on a number of very serious charges, and who is well known to the Kempton Park courts, was not a poor excuse.
“He is a frequent visitor to our specific court in Kempton Park on criminal matters and a well-drawn out extradition. On each occasion, the courts are swept for bombs and extra security provided every time he appears,” Nel said.
He said this defence by O’Sullivan should not be disregarded.
The magistrate added that prosecutor Jabulani Mlotshwa’s argument that O’Sullivan was keeping evidence and should testify should not be considered, as the burden of proof lies with the State and not the accused.
As soon as Nel delivered his judgment Mlotshwa said the State intended appealing the dismissal. DM
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