DECADE OF DECEIT LAID BARE

Confidential NPA report exposes senior officials who lied about Johan Booysen, yet they are still employed

By Jacques Pauw 5 August 2020
Caption
Original photo of Moipone Noko by Netwerk 24

Top prosecutors at the National Prosecuting Authority lied and concocted false evidence in a desperate attempt to nail former top Hawk Johan Booysen and the so-called Cato Manor ‘death squad’.

A deputy director at the National Prosecuting Authority (NPA) superimposed the signature of a potential witness on an “unsigned affidavit” to create the impression that there was evidence that implicated former top Hawk Johan Booysen and his men in murder, and a host of other crimes. 

Former KwaZulu-Natal Hawks head Johan Booysen. (Photo: Gallo Images / Alon Skuy)

The deputy director, advocate Sello Maema, was a leading member of a cabal of prosecutors at the NPA that was used during the State Capture project to maliciously prosecute diligent law enforcement officials who exposed corruption and nepotism. 

The extent of the lies and deceit of top NPA officials in the prosecution of Booysen and 26 former members of the Cato Manor and Port Shepstone organised crime units are laid bare in a top-level prosecutorial panel appointed by National Director of Public Prosecutions (NDPP) Shamila Batohi to advise her on the case.  

The confidential June 2019 report provides startling evidence of how former NDDP advocate Shaun Abrahams, acting NDPP advocate Nomgcobo Jiba, former Director of Public Prosecutions (DPP) in KwaZulu-Natal, advocate Moipone Noko, and Maema lied and conspired to charge Booysen and his men.  

Collectively, Booysen and the group faced 116 charges of murder, racketeering and robbery following the alleged extra-judicial killing of 28 suspects in KwaZulu-Natal during a three-year period between 2008 and 2011. 

Batohi appointed four of her top prosecutors, Deputy NDPP advocate Rodney de Kock, Limpopo DPP advocate Ivy Thenga, Western Cape deputy DPP Shareen Riley and senior state advocate Elijah Mamabolo to advise her about the evidence against Booysen and his men. 

The four prosecutors produced a 96-page report in June 2019, upon which Batohi withdrew the charges. The report has since then been under close wraps, probably because of the embarrassment it would cause the NPA. 

Despite the damning evidence against Noko and Maema that has been in Batohi’s possession for more than a year, no public steps have been taken against the two prosecutors.  

NPA national spokesperson Sipho Ngwema said that after Batohi was appointed as NDPP, she was confronted by a review application of Booysen. The racketeering certificate was issued by Abrahams, and she was “reluctant to take at face value any previous decisions”. 

He said the De Kock Panel was not instructed to investigate or make an opinion about the integrity of the prosecutors involved and does not make findings about this. He said the report was shared with the State Capture Commission because the Booysen matter is serving before Judge Raymond Zondo. 

Batohi has transferred Noko from KwaZulu-Natal to become the DPP in the North West, while Maema was moved to a top position in the same office. Ngwema said Maema has gone back to his original province, North West, while Noko was moved laterally to the same province as a DPP.

Both Maema and Noko, mailed at their official NPA addresses, did not respond to a request for comment.

Batohi’s lack of action raises questions about her efforts to restore the integrity of the NPA. The State Capture Commission completes its work only in March 2021 – that is if it does not get another extension – and Zondo’s report will only be published sometime after that. 

It is also not clear if Zondo is going to deal with the report at all, and by then, a key figure in the cabal, former acting head of the Priority Crimes Litigation Unit (PCLU), advocate Torie Pretorius, would have retired. 

Hermione Cronje, head of the NPA’s investigative directorate, said in November 2019: “The Zondo Commission is great, but it doesn’t help us.”  

While the De Kock Panel might not have made specific findings about the integrity of the implicated prosecutors, the evidence against them is compelling. The NPA is furthermore a law enforcement agency, and is compelled to act against evidence of fraud, misrepresentation and perjury. 

Booysen laid charges of fraud with the Hawks against both Maema and Noko in 2015 for “misrepresenting evidence”, but the cases have seemingly never been investigated. 

Booysen said this week that he had been informed of the damning findings in the report, but had not seen it. He said his lawyer had requested a copy of the report from Batohi, but she has declined to release it.

Six prosecutors were selected by Jiba to work on the Cato Manor case. Maema was appointed as the lead prosecutor because of his supposed experience of organised crime cases.   

Booysen and the Cato Manor cops appeared more than 20 times in court over a period of seven years. The case had a devastating impact on their lives. They were suspended for years, three have died since their prosecution and they spent millions of rands in legal costs. 

Booysen confirmed that he and the others are busy instituting civil claims against the NPA for malicious prosecution. Booysen refused to say how much he will claim from the NPA, but confirmed it will be several million rands. 

The disclosure of the Panel Report displays extreme malice by top NPA officials in the prosecution of Booysen and his men, and might well force the NPA to settle with the former accused. 

Booysen and his men were first arrested, and charged by Jiba in 2012 and again by Abrahams in 2016. Booysen testified at the State Capture Commission April 2019 how he and the officers were targeted because he refused to cease investigations into politically connected fraudsters and scammers.

Johan Booysen shows there’s no holding back a straight cop on a mission

Among them was Durban businessman Thoshan Panday, accused of scoring R60-million in irregular and lucrative SAPS tenders during the 2010 Soccer World Cup. 

Former provincial police commissioner Lt-Gen Mmamonnye Ngobeni instructed Booysen to drop the case and a fellow cop tried to bribe Booysen with R2-million to alter documents to protect Panday. Booysen was subliminally threatened with the exposure of the “death squad” if he didn’t comply.

Amid the corruption investigation, a R15-million payment by the SAPS to Panday’s company was frozen by Booysen. Former president Zuma’s son, Edward Zuma, requested Booysen to release the funds to his business partner, Panday. The group was ultimately arrested after Booysen refused to comply. 

The then acting DPP in KwaZulu-Natal, advocate Simphiwe Mlotshwa, had refused to charge Booysen and his men for a lack of evidence, but Jiba replaced him with Noko. She not only charged the Cato Manor policeman, but withdrew charges against Panday and the policeman who tried to bribe Booysen, Col Navin Madhoe.   

In terms of the Prevention of Organised Crime Act, a prosecution for racketeering – which could carry a life sentence – can only proceed once the NDPP has authorised it in writing after receiving a briefing and prosecution memorandum from the prosecutor/s. 

According to South African law, racketeering is the planned, ongoing, continuous or repeated participation in a criminal enterprise.  

The presentation that Maema and Noko made to Abrahams was riddled with mistakes and falsehoods. They, for example, failed to inform him that some of the evidence they relied on comprised hearsay evidence twice removed and lied about the availability of Aris Danikas as a witness. 

The evidence of Danikas was crucial in the state’s case. He is a Greek businessman and was a police reservist in Durban who worked with the Cato Manor unit. Booysen suspended him in 2008 for bringing police management into disrepute. He left the country overnight after allegedly stealing R300,000 from his business partner. 

Following an exposé about the Cato Manor “death squad” in the Sunday Times in December 2011 (the story was later withdrawn), and the arrest of Booysen and his men, Danikas turned on Booysen and his men. 

He claimed that he had accompanied the unit when they executed and tortured suspects, and planted evidence on crime scenes. He became the prosecution’s star witness. Danikas made an “affidavit”, but never signed it. It thus had no value. 

Booysen successfully applied to set his prosecution aside. Judge Trevor Govern ruled in the Durban High Court in 2014 that not only was Danikas’ statement neither signed nor dated, but said that even if it was an affidavit, it had no value in Booysen’s prosecution because the content did not cover the indictment period.

Only one incident in the Danikas “affidavit” covered the indictment period and Booysen was not mentioned in that incident. 

The court found that of the 23 dockets comprising the case, Booysen was mentioned in two. Those two did not implicate him in any crime. 

Govern criticised Jiba in his judgment and said her decision to prosecute was “arbitrary, offending the principle of legality and, therefore, the rule of law and were unconstitutional”. All the charges were withdrawn against Booysen and Jiba was charged with perjury and fraud.

When Mxolisi Nxasana became NDPP in October 2013, he requested from Jiba and her prosecutors the Cato Manor evidence. He recently told the State Capture Commission that there was not a “shred of evidence against Booysen”. 

After Zuma forced Nxasana into early retirement in May 2015, Shaun Abrahams entered the bullring and soon Maema camped at his door to reinstate the charges against Booysen.

He in turn withdrew the charges against Jiba and reinstated her, despite getting an opinion from Senior Deputy Director of Prosecutions advocate Jan Ferreira that “the decision taken to institute the prosecutions against Ms Jiba was sound in law and in line with the prescripts of the prosecution policy.”

In a fraught effort to re-prosecute Booysen, Abrahams sent Maema and another advocate to Greece in January 2016 to consult with Danikas. They returned empty-handed but, again, with an unsigned “statement”.

Maema and Noko presented a new prosecution memorandum to Abrahams, but it contained no new evidence. The De Kock Panel found that these were “merely cosmetic changes… and this did not amount to new evidence”. 

Abrahams inexplicably ordered the re-prosecution of Booysen, saying he was satisfied that there was new evidence and that the Danikas statement “would assist in establishing the nature, scope and modus operandi of the alleged enterprise”. 

Abrahams said in an affidavit that what “I can confirm with absolute confidence is that there served before me evidence that had not served before Jiba.”

But the De Kock Panel said: “An analysis of the statements Abrahams relied on shows that it is totally misplaced and that no new evidence was placed before Abrahams.”

Booysen privately had the Greek version of the affidavit – which was signed by Danikas – translated and verified. It contained the same information upon which Jiba relied when she authorised the prosecution four years earlier – and which the High Court overturned. 

Danikas had only signed a Greek version of his affidavit under the mutual legal assistance agreement between Greece and South Africa some eight months after Abrahams re-prosecuted Booysen. He later refused to sign the English version because it contained mistakes. 

Said the Panel: “Danikas does not implicate Booysen and the other accused… and will not assist the prosecution to prove the racketeering charges.”  

The De Kock Panel says the state’s reliance on Danikas’ evidence is “puzzling” and it failed to understand why the state never translated the Greek version into English.

When the Panel asked Maema for an explanation, he admitted in a memo on 24 April 2019 to De Kock: “When I represented it to Danikas after it was translated, he pointed out a number of mistakes in the statement and refused to sign it. His signature on the Greek version was just imposed [sic] on the English version.”

This a shocking admission by a senior state advocate. There could have been no lawful reason for Maema to have “imposed” a signature on an affidavit, but to create the impression that the English version was signed and commissioned. Maema’s malice is exacerbated by the fact that he admits that the statement contained mistakes.

Booysen privately had the Greek version of the affidavit – which was signed by Danikas – translated and verified. It contained the same information upon which Jiba relied when she authorised the prosecution four years earlier – and which the High Court overturned. 

It has also emerged now that Danikas was never on the state’s witness list and Maema did not intend calling him. Pretoria attorney Julian Knight, acting for Danikas, said in a February 2015 affidavit that he had received an email from Maema in early 2015 stating that he would not be calling Danikas as a witness. 

In the attached memo of Maema, dated 27 January 2015, he admitted that the incidents that Danikas refers to were of a five-year period between 2007 to 2011, which he acknowledged was a “period not covered in the indictment”. 

Both Noko and Maema have been implicated at the State Capture Commission of abusing their offices to protect politically connected individuals. In her decade-long tenure as head of prosecutions in KwaZulu-Natal, Noko was responsible for withdrawing serious charges against a long list of dodgy, politically connected businesspeople.

Said Maema: “We are not sure that the witness is telling us everything. We have to date not been able to convince our prosecution authorities that Mr Danikas’ evidence will assist the state case in any way.”

Maema and Noko lied in the prosecution memorandum to Abrahams in 2016 when they alleged that there was new evidence against the policemen. The prosecution had three witnesses that they said would implicate Booysen and his men in a criminal enterprise: Danikas, Bhekinkosi Mthiyana and Simphiwe Mathonsi. 

The De Kock Panel found that Mthinyana and Mathonsi’s evidence “amounts to double hearsay” and was of “a very low probative value”. This upholds the finding of Judge Govern in 2014. 

The Panel said it was a mystery why the prosecution charged several policemen who played no role in the incidents, while others who were mentioned in the dockets were not charged.

Maema purported that Booysen and his men participated in the alleged enterprise for monetary gain. He motivated the charge by pointing out that Booysen once received a police award of R10,000. 

Said the Panel: “It is thus absurd to suggest that a manager of a criminal enterprise would involve himself in killings so that he can be rewarded for a mere sum of R10,000.”

The Panel determined that a police national committee decides the awarding of rewards, making the prosecution’s allegation “even more ludicrous”. 

The Panel concluded that there are “serious concerns regarding the quality of the investigation”. There was little effort to find witnesses, no identification parades were held and the accused’s firearms were never tested to link it to the bullets that killed the deceased.  

Abrahams, Jiba, Noko and Maema were part of a cabal of prosecutors at the NPA which allegedly targeted perceived enemies of Jacob Zuma’s State Capture project. While Abrahams and Jiba have been disposed of by the courts, Maema and Noko appear to have escaped any sanction.  

Abrahams and Jiba primarily engaged the PCLU at the NPA – who is mandated to tackle cases of national security and crimes like genocide – to target the likes of Booysen and his men, SARS executives Ivan Pillay and Johann van Loggerenberg, the NPA’s Glynnis Breytenbach, Hawks generals Shadrack Sibiya and Anwa Dramat, Independent Police Investigative Directorate’s (IPID) head Robert McBride, Pravin Gordhan and former SARS commissioner Oupa Magashula. 

The Hawks general entrusted with leading the investigations against the State Capture corruption busters was North West Hawks head Maj-Gen Jan Mabula. He was in turn close to former police crime intelligence head Lt-Gen Richard Mdluli, who was a Zuma keeper and a key figure in the State Capture project. 

Maema and Pretorius were involved in these trumped-up prosecutions that didn’t result in a single guilty verdict, but it financially ruined the accused, drove them from their jobs and paved the way for Zuma lackeys to be appointed in key positions in the law enforcement agencies.   

Pretorius, who made a fool of himself in his comical attempt at prosecuting Gordhan, Pillay and Magashule for fraud, is seriously ill and will soon retire with full pension benefits. 

Both Noko and Maema have been implicated at the State Capture Commission of abusing their offices to protect politically connected individuals. In her decade-long tenure as head of prosecutions in KwaZulu-Natal, Noko was responsible for withdrawing serious charges against a long list of dodgy, politically connected businesspeople.

A panel headed by former Constitutional Court judge Yvonne Mokgoro found in 2019 that Jiba was unfit to hold office in the NPA. President Cyril Ramaphosa fired her

Maema joined Noko at the NPA’s headquarters in Mmabatho in North West, which has seemingly become the dumping ground for rotten apples in the law enforcement agencies. 

Noko and Maema will work closely with the province’s most senior detective, Maj-Gen Patrick Mbotho. He was in 2019 “redeployed” to the North West after the Western Cape’s head of the Family, Child and Sexual Offences Unit wrote in desperation to Police Minister Bheki Cele that Mbotho sexually harassed her. He also circulated a pornographic video to a SAPS WhatsApp group.  

The Hawks general entrusted with leading the investigations against the State Capture corruption busters was North West Hawks head Maj-Gen Jan Mabula. He was in turn close to former police crime intelligence head Lt-Gen Richard Mdluli, who was a Zuma keeper and a key figure in the State Capture project. 

After a full bench of High Court judges ruled in 2017 that the decision to withdraw charges against Jiba was unlawful and irrational, Abrahams was obliged to reinstate the charges against her. 

Instead, he sent the docket to the previous DPP in the North West, advocate JJ Smit. Despite the ruling of three judges, he said in a memo to Abrahams: “I have indeed studied the docket and I have taken the following decision: There is no prima facie case against advocate N Jiba on charges of fraud and perjury.”

Following the departure of Abrahams and the appointment of Batohi, Jiba has still not been re-charged. Ngwema said in his comment to Daily Maverick: “The Jiba matter is under consideration by the Pretoria DPP.”

Said Ngwema: “I want to emphasise that we all want to restore integrity and see justice being done. We should make sure none of our actions should sabotage those noble intentions. Public interest demands that we deliver on the new vision of the NPA – this will be a process, not an event.” DM

Gallery

Days of Zondo

Mosebenzi Zwane points the finger of blame over R1-billion housing scheme he says was ‘pretty legal’

By Erin Bates